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OF CALIFORNIA 
LOS ANGELES 


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in 2007 with funding from 
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MODERN CRIMINAL SCIENCE SERIES 


Published under the auspices of the American Institute of Criminal Law and 
/ Criminology 

"1. Modern Theories of Criminality. By C. BERNALDo pe Quirés, of 
Madrid. Translated from the Second Spanish edition, by Dr. ALFonso DE SaLvio, 
Assistant Professor of Romance Languages in Northwestern University. With an 
American Preface by the Author, and an Introduction by W. W. Smiruers, of the 
Philadelphia Bar. 

¥” 9. Criminal Psychology. By Hans Gross, Professor of Criminal Law in the 
University of Graz, Austria, Editor of the Archives of Criminal Anthropology and 
Criminalistics, etc. Translated from the Fourth German edition, by Dr. Horace M. 
Kaen, Professor of Philosophy in Wisconsin University. With an American Preface 
by the Author, and an Introduction by Josrpa Jastrow, Professor of Psychology in 
the University of Wisconsin. 


“" 3. Crime, Its Causes and Remedies. By Cxsare Lomsroso, late Professor 
of Psychiatry and Legal Medicine in the University of Turin, author of the “Criminal 
Man,” Founder and Editor of the “Archives of Psychiatry and Penal Sciences.” 
Translated from the French and German editions by Rev. Henry P. Horton, M.A., 
of Ithaca, N. Y. With an Introduction by Maurice Parmuten, Associate Professor 
of Sociology in the University of Missouri. 

4. The Individualization of Punishment. By Raymonp SaLEruuzs, Professor 
of Comparative Law in the University of Paris. Translated from the Second French 
edition, by Mrs. Racuarn Szoup Jastrow, of Madison, Wis. With an Introduction 
by, Roscor Pounn, Professor of Law in Harvard University. 


¥"5. Penal Philosophy. By Gasrret Tarps, Late Magistrate in Picardy, 
Professor of Modern Philosophy in the College of France, and Lecturer in the Paris 
School of Political Science. Translated from the Fourth French edition by Raprisz 
Howe tt, of the New York Bar. With an Editorial Preface by Epwarp Lipsey, of 
the Warren, Pa., Bar, and an Introduction by Ropurt H. Gautr, Assistant Professor 
of Psychology in Northwestern University. 


"6. Crime and Its Repression. By Gustav AscHarrensuRG, Professor of 
Psychiatry in the Academy of Practical Medicine at Cologne, Editor of the “Monthly 
Journal of Criminal Psychology and Criminal Law Reform.’ Translated from the 
Second German edition by ApaLBert ALBREcHT. With an Editorial Preface by 
Mavrice ParMe.es, Associate Professor of Sociology in the University of Missouri, 
and an Introduction by ArrHur C. Tratn, formerly Assistant District Attorney for 
New York County. 


*” 7. Criminology. By RarrarLtLte Garorao, late President of the Court of 
Appeals of Naples. Translated from the First Italian and the Fifth French edition, 
by Ropert W. Miitar, Esq., of Chicago, Professor in Northwestern University Law 
School. With an Introduction by E. Ray Stevens, Judge of the Circuit Court, Madi- 
son, Wis. 

. 8. Criminality and Economic Conditions. By W. A. Boncrr, Doctor in Law 
of the University of Amsterdam. Translated from the French by Henry P. Horton, 
M.A., of Ithaca, N. Y. With an American Preface by the Author, and an Editorial 
Preface by Epwarp Lipsey, of the Warren, Pa., Bar, and an Introduction by Frank 
H. Norcross, Justice of the Supreme Court of Nevada. 


9. Criminal Sociology. By Enrico Frrrt, of the Roman Bar, and Professor 
of Criminal Law and Procedure i in the University of Rome, Editor of the “ Archives of 
Psychiatry and Penal Sciences,” the “ Positivist School in Penal Theory and Practice,” 
ete. Translated from the Fourth Italian and Second French edition, by Joszpx I. 
Keuty, late Lecturer on Roman Law in Northwestern University, and Dean of the 
Faculty of Law in the University of Louisiana, and Joun Lists, late of the Philadelphia 
Bar. With an American Preface by the Author, an Editorial Preface by Wmt1am W. 
Smrtuers, of the Philadelphia Bar, and Introductions by Caartes A. Extwoop, Pro- 
fessor of Sociology in the University of Missouri, and Quincy A. Myers, formerly 
Chief Justice of the Supreme Court of Indiana. 


THE MODERN CRIMINAL SCIENCE SERIES 
Published under the Auspices of 
THE AMERICAN INSTITUTE OF CRIMINAL LAW AND CRIMINOLOGY 








Criminology 


BY 
Baron RAFFAELE GAROFALO 


Procurator-General at the Court of Appeal of Venice and Senator 
of the Kingdom of Italy 


Translated by 


ROBERT WYNESS MILLAR 
Lecturer in Northwestern University Law School 


Wits aN INTRODUCTION BY 


E. RAY STEVENS 


' Judge of the Circuit Court, Madison, Wis., Member of Executive Board 
of American Institute of Criminal Law and Criminology 


| BOSTON 
LITTLE, BROWN, AND COMPANY 
1914 


Coryvricut, 1914, 
By Lirrite, Brown, anp Company. 





All rights reserved 
a ie 
A Bd gi 
19 14. 


RIF (9 Sep SZ 


GENERAL INTRODUCTION TO THE 
MODERN CRIMINAL SCIENCE SERIES. 


At the National Conference of Criminal Law and Crim- 
inology, held in Chicago, at Northwestern University, in 
June, 1909, the American Institute of Criminal Law and 
Criminology was organized; and, as a part of its work, the 
following resolution was passed: 

“Whereas, it is exceedingly desirable that important 
treatises on criminology in foreign languages be made readily 
accessible in the English language, Resolved, that the presi- 
dent appoint a committee of five with power to select such 
treatises as in their judgment should be translated, and to 
arrange for their publication.” 

The Committee appointed under this Resolution has made 
careful investigation of the literature of the subject, and has 
consulted by frequent correspondence. It has selected 
several works from among the mass of material. It has 
arranged with publisher, with authors, and with transla- 
tors, for the immediate undertaking and rapid progress of 
the task. It realizes the necessity of educating the profes- 
sions and the public by the wide diffusion of information on 
this subject. It desires here to explain the considerations 
which have moved it in seeking to select the treatises best 
adapted to the purpose. 

For the community at large, it is important to recognize 
that criminal science is a larger thing than criminal law. 
The legal profession in particular has a duty to familiarize 
itself with the principles of that science, as the sole means 


for intelligent and systematic improvement of the criminal 
law. 


709361 


vi - GENERAL INTRODUCTION 


Two centuries ago, while modern medical science was still 
young, medical practitioners proceeded upon two general 
assumptions: one as to the cause of disease, the other as to 
its treatment. As to the cause of disease, — disease was sent 
by the inscrutable will of God. No man could fathom that 
will, nor its arbitrary operation. As to the treatment of 
disease, there were believed to be a few remedial agents of 
universal efficacy. Calomel and blood-letting, for example, 
were two of the principal ones. A larger or smaller dose of 
calomel, a greater or less quantity of bloodletting, — this 
blindly indiscriminate mode of treatment was regarded as 
orthodox for all common varieties of ailment. And so his 
calomel pill and his bloodletting lancet were carried every- 
where with him by the doctor. 

Nowadays, all this is past, in medical science. As to the 
causes of disease, we know that they are facts of nature, 
— various, but distinguishable by diagnosis and research, 
and more or less capable of prevention or control or counter- 
action. As to the treatment, we now know that there are 
various specific modes of treatment for specific causes or 
symptoms, and that the treatment must be adapted to the 
cause. In short, the individualization of disease, in cause and 
in treatment, is the dominant truth of modern medical science. 

The same truth is now known about crime; but the under- 
standing and the application of it are just opening upon us. 
The old and still dominant thought is, as to cause, that a 
crime is caused by the inscrutable moral free will of the human 
being, doing or not doing the crime, just as it pleases; abso~ 
lutely free in advance, at any moment of time, to choose or 
not to choose the criminal act, and therefore in itself the 
sole and ultimate cause of crime. As to treatment, there 
still are just two traditional measures, used in varying doses 
for all kinds of crime and all kinds of persons, — jail, or a 
fine (for death is now employed in rare cases only). But 
modern science, here as in medicine, recognizes that crime 


GENERAL INTRODUCTION Mii 


also (like disease) has natural causes. It need not be asserted 
for one moment that crime is a disease. But it does have 
natural causes, — that is, circumstances which work to pro- 
duce it in a given case. And as to treatment, modern science 
recognizes that penal or remedial treatment cannot possibly 
be indiscriminate and machine-like, but must be adapted 
to the causes, and to the man as affected by those causes. 
Common sense and logic alike require, inevitably, that the 
moment we predicate a specific cause for an undesirable 
effect, the remedial treatment must be specifically adapted 
to that cause. 

Thus the great truth of the present and the future, for 
criminal science, is the individualization of penal treatment, 
— for that man, and for the cause of that man’s crime. 

Now this truth opens up a vast field for re-examination. 
It means that we must study all the possible data that can 
be causes of crime, — the man’s heredity, the man’s physi- 
cal and moral make-up, his emotional temperament, the 
surroundings of his youth, his present home, and other 
conditions, — all the influencing circumstances. And it 
means that the effect of different methods of treatment, old 
or new, for different kinds of men and of causes, must be 
studied, experimented, and compared. Only in this way 
ean accurate knowledge be reached, and new efficient meas- 
ures be adopted. 

All this has been going on in Europe for forty years past, 
and in limited fields in this country. All the branches of 
science that can help have been working, — anthropology, 
medicine, psychology, economics, sociology, philanthropy, 
penology. The law alone has abstained. The science of 
law is the one to be served by all this. But the public in gen- 
eral and the legal profession in particular have remained 
either ignorant of the entire subject or indifferent to the 
entire scientific movement. And this ignorance or indiffer- 
ence has blocked the way to progress in administration. 


viii GENERAL INTRODUCTION 


_ The Institute therefore takes upon itself, as one of its aims, 
to inculcate the study of modern criminal science, as a press- 
ing duty for the legal profession and for the thoughtful 
community at large. One of its principal modes of stimulat- 
ing and aiding this study is to make available in the English 
language the most useful treatises now extant in the Con- 
tinental languages. Our country has started late. There 
is much to catch up with, in the results reached elsewhere. 
We shall, to be sure, profit by the long period of argument 
and theorizing and experimentation which European thinkers 
and workers have passed through. But to reap that profit, 
the results of their experience must be made accessible in 
the English language. 

The effort, in selecting this series of translations, has been 
to choose those works which best represent the various schools 
of thought in criminal science, the general results reached, 
the points of contact or of controversy, and the contrasts of 
method — having always in view that class of works which 
have a more than local value and could best be serviceable 
to criminal science in our country. As the science has vari- 
ous aspects and emphases — the anthropological, psychologi- 
cal, sociological, legal, statistical, economic, pathological — 
due regard was paid, in the selection, to a representation of 
all these aspects. And as the several Continental countries 
have contributed in different ways to these various aspects, — 
France, Germany, Italy, most abundantly, but the others 
each its share, — the effort was made also to recognize the 
different contributions as far as feasible. 

The selection made by the Committee, then, represents 
its judgment of the works that are most useful and most 
instructive for the purpose of translation.. It is its conviction 
that this Series, when completed, will furnish the American 
student of criminal science a systematic and sufficient ac- 
quaintance with the controlling doctrines and methods 
that now hold the stage of thought in Continental Europe. 


GENERAL INTRODUCTION ix 


Which of the various principles and methods will prove 
best adapted to help our problems can only be told after 
our students and workers have tested them in our own ex- 
perience. But it is certain that we must first acquaint our- 
selves with these results of a generation of European thought. 

In closing, the Committee thinks it desirable to refer the 
members of the Institute, for purposes of further investiga- 
tion of the literature, to the “ Preliminary Bibliography of 
Modern Criminal Law and Criminology ” (Bulletin No. 1 
of the Gary Library of Law of Northwestern University), 
already issued to members of the Conference. The Com- 
mittee believes that some of the Anglo-American works 
listed therein will be found useful. 


CoMMITTEE ON TRANSLATIONS. 


Chairman, Joun H. WicMore, 
Dean of Northwestern University School of Law, Chicago. 
Ernst FREvunpD, 
Professor of Law in the University of Chicago. 
Epwarp LinpseEy, 


Associate Editor of the Journal of the American Institute 
of Criminal Law and Criminology, Warren, Penn. 


Maovrice PARMELEE, 


Associate Professor of Sociology in the University of 
Missouri, Columbia, Missouri. 


Roscor Pounp, 


Professor of Law in Harvard Law School, Cambridge, 
Mass. 


Wiu1am W. SmItHERs, 


Secretary of the Comparative Law Bureau of the Ameri- 
can Bar Association, Philadelphia, Penn. 


NAR JL? 
iy, See 





TRANSLATOR’S PREFACE 


None of the Continental writers who deal with crime and 
the criminal seems destined to a larger audience among 
English-speaking peoples than the author of the work here 
translated. His teachings, in the main, are characterized by 
a simplicity and directness that should have a special appeal 
to the Anglo-Saxon mind. They contain “no anointings for 
broken bones, no fine theories ‘de finibus,’ no arguments to 
persuade men out of their senses.” And, indeed, Anglo- 
Saxon influences have not been without their part in the 
groundwork of his system. Here Darwin, Spencer, and 
Bagehot have all contributed to shape his thought and color 
his ideas. But whatever of indebtedness thus exists on his 
part has been repaid with usury. Few of us, perhaps, would 
be willing to accept all the applications of his principles, 
fewer, perhaps, to regard the system of procedure for which 
he contends as the last word in the mechanics of the criminal 
law; but, none the less, he offers much that England and 
America, without departing from their traditions, may lay 
hold of to advantage in building for the future. 

Baron RarrarLeE GAROFALO, a member of an Italian noble 
family of Spanish origin, was born in the city of Naples in 
1852. He was educated for the law, and at the conclusion of 
his university studies entered what in Italy, as elsewhere on 
the Continent, is really a profession by itself, namely, the 
magistracy. Passing from grade to grade, he attained high 
place at a comparatively early age. Among the important 
offices which he has held are those of President of the Civil 
Tribunal of Pisa, Substitute Procurator-General at the Court 
of Cassation in Rome, and President of Division (“Sezione’’) 
in the Court of Appeal of Naples. At present he is Procurator- 

xl 


xii TRANSLATOR’S PREFACE 


General at the Court of Appeal of Venice. Added to this, he 
is a Senator of the Kingdom of Italy and Adjunct Professor 
of Criminal Law and Procedure in the University of Naples, 
with personal distinctions including membership in the gov- 
erning body of the Heraldic Council, the rank of Officer in the 
Order of Saint Maurice and Saint Lazarus, and that of “Com- 
mendatore”’ in the Royal Order of the Crown of Italy. 

At the time of his appointment to the Senate, he had already 
a long record of usefulness in connection with legislation for 
the betterment of the criminal law. A notable achievement 
in this field was the preparation, in 1903, at the instance of the 
Minister of Justice, of the draft of a code for the reformation 
of criminal procedure in the Italian courts. Political reasons, 
unfortunately, forced the Government to lay this project aside. 

He has been a member of the Royal Academy of Naples, 
as also of the International Institute of Sociology, which has 
its headquarters at Paris. As President of the last-mentioned 
organization, he was Chairman of the Congress held at Berne 
in 1909, whose subject of discussion was “Solidarity.” Some 
time ago he was elected to the Presidency of the Italian Society 
of Sociology, which office he still holds. He is the author of 
many articles on legal, sociologic, and economic topics, and 
of numerous papers read before societies for the advancement 
of related studies, in particular that of crime and its treatment. 
Other writings of his are: “Criminal Attempt by Insufficient 
Means;”’! ““The True Manner of Trial and Sentence;’’? “In- 
demnification of Persons Injured by Crime;” * “The Socialist 
Superstition;” * and “International Solidarity in the Repres- 
sion of Crime.” * 

But it is upon his “Criminology” that Garofalo’s title to 
international renown principally rests. Its doctrines, varying 
1 “Tl tentativo criminoso con mezzi inidonei”’ (Turin, Loescher, 1882). 

2 “Cid che dovrebbe essere un giudizio penale” (Turin, Loescher, 1882). 
3 “Riparazione alle vittime del delitto” (Turin, Bocca, 1887). 
4 Tr. Dietrich, “La Superstition socialiste” (Paris, F. Alean, 1895). 


5 “De la solidarité des nations dans la lutte contre la criminalité” (Paris, 
Giard et Briére, 1909). 


TRANSLATOR’S PREFACE xiii 


markedly from those of Lombroso and Ferri, but attach- 
ing the same value to experimental and inductive methods, 
have ranked him as one of the three protagonists of the Italian 
positive school, and earned him commanding place among 
the leaders of criminal science. As explained in his own pref- 
ace, this book was the outgrowth of a brochure which he 
published in 1880: “Concerning a Positive Criterion of 
Punishment.” The first Italian edition of the “Criminology” 
appeared at Naples in 1885, the second at Turin in 1891. To 
ensure a wider public, a French version was prepared by the 
author personally. This has gone through five editions, in 
the last of which, brought out in 1905, he took occasion to 
effect a complete recasting of the work. Translations have 
also been made into Spanish and Portuguese, the former by 
P. Dorado y Montero, the latter by J. De Mattos. 

Conformably to the wishes of the author, the present ver- 
sion is taken from the French edition of 1905. The translator, 
however, has kept the second Italian edition constantly be- 
fore him, and has found it of much service. Indeed, the in- 
terests of the English version have at times seemed to require 
that the Italian edition be laid under direct contribution. 
It is thus responsible for verbal deviations, here and there, 
from the French text, for some amplification of statements 
of fact in relation to criminal cases referred to by the author 
(containing, as a rule, a fuller account of such cases), and for 
slight additions to the foot-notes. So, also, it has con- 
siderably influenced the matter of quotations from Italian 
writers. 

In the work of translation, closeness of rendition has not 
been looked upon as an inflexible canon. The aim has been 
to say what Garofalo has said, but to say it as an Englishman 
or American would have said it. Where literalness would have 
interfered with naturalness, literalness has been freely sacri- 
ficed. Pursuant to the ideas of the Editorial Committee, 
titles have been given to the sections (these, save in a few 
instances, being without superscription in the original) and 


xiv TRANSLATOR’S PREFACE 


italic side-headings introduced where they appeared of ad- 
vantage. Some re-arrangement of subdivisions has likewise 
been found advisable. Except in the case of the material 
for an international penal code, comprising Part IV, such re- 
arrangements are indicated by a foot-note at the outset of 
the chapter wherein they occur. It also seemed more in 
keeping with our ideas of book-making that the matter con- 
tained in the appendices should follow Part IV, instead of 
preceding it. One or two minor inadvertencies of the author 
have been corrected without comment. 

A certain amount of hesitation was experienced as to the 
proper rendition of “probité,” the term used by the author 
to designate the second of the elementary altruistic instincts, 
that is to say, the sentiment of respect for the property of 
others. It was a question whether it should not be translated 
as “honesty,”’ in view of the specific meaning which this word 
usually carries in modern English, unlike its corresponding 
forms in French and Italian. But for one thing, the wider 
meaning of “honesty” is not altogether extinct: we still speak 
of the “honest” man as the opposite of the criminal, without 
necessarily referring to the thievish or mendacious criminal. 
Then again, there is little difference in meaning between 
“probity” on the one hand, and the French “probité” and 
the Italian “probita”’ on the other. The objection to the use 
of “probity” in the present connection is that it implies a 
high degree of respect, or a superior kind of respect, for what 
belongs to others — a maximum, rather than otherwise, of 
the moral quality sought to be denoted. But the same thing 
unquestionably holds true of the French and Italian words. 
Speaking of “probita,”’ in his second Italian edition, Garofalo 
himself owns to its lack of precision, and emphasizes the fact 
that it has only been adopted in default of an apter term.’ 
These considerations, together with the further advantage 
of preserving the identity of the author’s terminology, dic- 
tated the employment of “probity” as the nearest equivalent. 

1 P. 32 (Turin, Bocca, 1891). 


TRANSLATOR’S PREFACE XV 


It is to be sure inexact, but in this it merely reproduces the 
acknowledged inexactness of its original. 

Some notes have been added by the translator, chiefly with 
reference to the meaning of legal terms. In this regard (as 
well as for guidance to specific renderings) Sir James Fitz- 
james Stephen’s “History of the Criminal Law of England” 
has been repeatedly drawn upon. For the general explana- 
- tion, however, which would have been a desirable pendant of 
Garofalo’s chapter on procedure, the reader is directly referred 
to the illuminating account of French criminal procedure 
(with which the Italian substantially accords) contained in 
Stephen’s first volume. On this head, too, the collection of 
entertaining sketches translated and edited by Gerald P. 
Moriarty under the title of “The Paris Law Courts”! will 
be found to yield much serious information. The paper by 
Alfred Le Poittevin, in Barrows’ “Penal Codes of France, Ger- 
many, Belgium, and Japan,” * may likewise be consulted with 
profit. A number of articles in English and American legal 
periodicals also deal with the subject, of which should be 
mentioned: “The Trial of Crime in France,” by Thomas 
Barclay, 10 Harvard Law Review, 46-48, “Criminal Proce- 
dure in France and England,” by Léon de Montluc, 12 
Journal of Comparative Legislation (N. s.), 157-174; “The 
French Judicial System,” by C. A. Hereshoff Bartlett, 
Part II, “Criminal,” 38 Law Magazine and Review, 428-446; 
and (by all means) Judge Lawson’s interesting notes on his 
recent study of the French courts, appearing in the current 
volume of the American Law Review (Vol. 47, 143-152, 300- 
312, 458-469). | 

As a final word, the translator would record his indebtedness 
to the Chairman of the Editorial Committee, whose counsel 
has smoothed out numerous difficulties and whose encourage- 
ment has lent an added agreeableness to the task. 


Cuicago, October 10, 1913. 


1 New York, Scribner, 1894. 
? Pp. 43-80 (Washington, Government Printing Office, 1901). 


WrJe 
as. 


‘ 
Pi: 
Y 





INTRODUCTION TO THE ENGLISH 
VERSION 


By E. Ray Stevens! 


BEGINNING with the days when the accused was without 
counsel, without witnesses, without even the right to testify 
in his own behalf, the attention of society was long engrossed 
with the protection of the accused before conviction. His 
rights have been made so secure by bills of rights and other 
constitutional limitations as to protect, often, the guilty 
as well as the innocent from punishment. We cling so tena- 
ciously to the old methods of protecting the accused that Baron 
Garofalo justly says that the dominant theory today is to 
protect the criminal against society rather than to protect 
society against the criminal. 

Were it not for our worship of these old rules that have long 
since ceased to be applicable to the administration of modern 
criminal justice, we would compel the defendant to take the 
stand in criminal as well as in civil actions, because, of all 
men, he knows most about his guilt or innocence. The object 
of the trial of a criminal action should be to find the truth, — 
not to shield a guilty person from a just conviction. Adher- 
ence to these archaic rules is one of the chief causes for the 
existing dissatisfaction with the administration of criminal 
justice, because the accused is allowed to play his game with 
loaded dice, while justice travels with leaden heel.? This 


1 Judge of the Ninth Judicial Circuit, Madison, Wisconsin; member of the 
Executive Board of the American Institute of Criminal Law and Criminology. 
2 Chief Justice Winslow, in Hack v. State, 141 Wis. 346, 352. 


XVill INTRODUCTION 


condition was tolerated because society considered punish- 
ment as a substitute for private vengeance and still looked 
upon the trial as a kind of warfare in which the end—acquittal 
— justified the means. 

Up to recent times society as a whole felt that it had done 
its full duty to itself and to the accused when it protected 
him at every step up to his conviction. Upon his conviction 
the individual ceased to be of interest to society, at least until, 
his sentence past, he emerged from prison and was again 
featured in the newspapers in some new crime. Up to very 
recent times society has failed to recognize the fact that the 
great problems connected with the administration of crim- 
inal justice begin when the guilt of the accused has been 
determined. 

Happily we have discovered the large part which juvenile 
courts, indeterminate sentences, probation, and parole can 
play in the administration of our criminal justice. But we 
need to have shed on our path of progress such light as is 
thrown by Baron Garofalo’s practical and sane book on Crim- 
inology, which gives the. conclusions formed in a life spent 
in the administration of the criminal law as lawyer, 
prosecuting officer, and judge. As one reads this: enlight- 
ening work, he is impressed again and again by the fact that 
the men with whom the author dealt were actuated by the 
same motives and were in need of the same treatment as 
those who appear in the criminal courts of our English- 
speaking countries. 

Proceeding upon the theory that punishment at the hands 
of the public is a substitute for private vengenace, society has 
attempted to measure punishment by the harm done to society; 
so that the quantum of punishment inflicted on the offender 
should weigh as heavily on one side of the scales of justice as 
the harm done by the accused does upon the other. This 
theory overlooks entirely the fact that the object of punish- 
ment is not to replace private vengeance, but that it should 
be to protect society from future harm from the offender by 


INTRODUCTION xix 


so changing the motives that guide his action that he will no 
longer remain a menace. As the author puts it: “Our 
efforts . . . are to be directed, not to measuring the quantum 
of harm to be inflicted on the criminal, but to determining 
the kind of restraint best fitted to the peculiarities of his 
nature” (p. 299). 

We have given too much consideration to the offense, too 
little to the offender. We must give more consideration to 
the individual, less to the chapter and verse of the written 
law that declares the punishment for each offense. If the 
offense be burglary, we have been prone to impose the same 
punishment whether the defendant be a recidivist or a first 
offender. We have given altogether too little consideration 
to the personal history and characteristics of the individual 
in determining what shall be done to protect society against 
future harm. As the author so ably demonstrates, the only 
way of protecting society from the recidivist is to eliminate 
him. At present, we confine him for the prescribed orthodox 
period and then give him liberty, with no better equipment for 
becoming a desirable member of society than the reputation 
of being a convict and the inherent aptitude to commit another 
crime, which may in fact be his only means of securing even 
the barest necessities of continued physical existence. Such 
men are as much in need of treatment and care as if suffering 
from a physical ailment. 

One great obstacle in the way of giving to each offender the 
individual treatment which Baron Garofalo would have him 
receive is that the law imposes on the trial judge the impossible 
task of determining in advance the punishment best suited to 
the needs of each individual offender. That determination 
must be made in most cases after the most limited opportu- 
nity to observe the defendant. In thé great majority of cases 
he enters a plea of guilty without trial; frequently he is prac- 
tically unknown in the community. Yet under such circum- 
stances the trial judge is expected to play the part of the wise 
physician, to determine to the day the length of treatment 


XX INTRODUCTION 


that the defendant must undergo for his reform or cure and 
for the protection of society. No physician, even the most 
able and experienced, can treat his patients without oppor- 
tunity to observe them from day to day that he may adapt, 
his treatment to their needs. The trial judge is not wiser 
than the physician. 

Far too many sentences imposed in our criminal courts 
today are leaps in the dark. The needs of society and of the 
prisoner can be determined only by an investigation of the 
personal history of the individual, of his physical condition 
and his mental characteristics, of his companions and his en- 
vironment, and above all other things, of the motives that 
prompted the defendant to commit the crime. Often the 
trial judge cannot make this investigation. In many cases 
it must be continued for a considerable period while the de- 
fendant is undergoing punishment. As a rule the older the 
defendant the more skilful he is in concealing these essential 
facts and in playing the part of a first offender. The writer 
of this introduction has sentenced more than one defendant 
believing each to be a first offender, after investigating the 
case, only to be informed by the prison officials that an 
investigation of the records in other states showed him to 
be a confirmed criminal. Yet after completing compara- 
tively short terms these men have gone forth to prey on 
society, emboldened perhaps by their success in escaping 
with short terms. 

These experiences, as well as the impossibility of determin- 
ing in advance the punishment that should be given to each 
offender, lead one to suggest that, at least in all the more 
serious offenses, the functions of the court should cease with 
the determination of the guilt or innocence of the accused. 
The punishment to be imposed should be determined by those 
especially qualified to judge of the need of the individual and 
of society, who can investigate the history of the prisoner 
and observe his progress from day to day as does the 
physician, with power to change the treatment, within 


INTRODUCTION Xxi 


certain prescribed limits, as the needs of the individual 
may require. 

Among the chief contributions made by the author is the 
development of the thought that the motive that moved the 
offender to commit the crime is one of the most important 
elements to be considered in determining what shall be done 
to protect society from future harm from the same offender. 
Discover the motive and give such treatment as will tend to 
change that motive, and the first step has been taken toward 
so changing the offender that he shall no longer be a menace 
to society. 

The defects of our present method of punishment become 
apparent as we read the author’s discussion of the means of 
punishment that should be employed with different classes of 
offenders. If the prisoner has taken the property of another, 
let a part of his punishment consist of a restoration of the 
property, voluntarily if he will, at hard penal labor if he will 
not or cannot restore it otherwise. If he deserts his family, 
let him be compelled to support them by building roads or 
performing other labor found by the proper officers, instead 
of condemning him to a life of idleness in some jail where he 
may play cards and smoke with other gentlemen of leisure 
like himself and eat his three meals a day at the expense of 
the same taxpayers who are compelled to aid in the support 
of the deserted family. 

Society will find much greater protection under our crim- 
inal law when we recognize the truth of Baron Garofalo’s 
teachings that punishment should have the single aim of 
disarming an enemy of society, by adapting the quantum and 
kind of punishment to the needs of each individual offender, 
so that none shall suffer more than his individual needs shall 
warrant in order that he shall cease to offend against society, — 
which is the end that should be achieved by all punishment. 
The habitual criminal should be eliminated from society. 
The offender who can be adapted to an upright life among his 
fellowmen should be given the aid to that better life which it 


xxii INTRODUCTION 


is the duty of society to give to those whom it can restore to 
good citizenship. 

The author takes an eminently sane view of criminology. 
He is wholly free from false sentiment. He approaches the 
subject from the point of view which will mark the next step 
in advance in a modern and enlightened criminal science. 


Mapison, WISCONSIN, | 
September, 1913. 


AUTHOR’S: PREFACE TO THIS EDITION 


I 


From the earliest period of my legal studies, the question 
had begun to present itself to my mind: How has the law- 
maker arrived at an exact knowledge of the kind and degree 
of punishment appropriate to each of the various criminal 
offenses? By what means has he reached the conviction, for 
example, that five years in the penitentiary is the proper 
punishment for one kind of larceny, while for another, two 
years of a milder form of imprisonment will suffice? What 
steps has he taken to weigh this or that aggravating or ex- 
tenuating circumstance with such exactness as to warrant 
an increase or diminution in the punishment of six months, 
one year, five years, ten years, as the case may be? Where 
has he found his criterion, his thread of guidance in this 
labyrinth? 

My first impression was the ingenuous one that he had 
proceeded by experiment. But after having had my curiosity 
and admiration thus aroused, I discovered this notion to be 
wholly without foundation. I learned that in establishing 
his rules, the legislator had not taken the slightest pains to 
test their efficacy. To seek remedies for crime, this social 
disease which assumes such different forms and exhibits 
such variations with the individual — such, one would think, 
ought to have been the course pursued. Clearly, without the 
employment of this method no physician would venture to 
announce a discovery. But it has not been followed by the 
law-maker. He has left us wholly in the dark as to how much 
or how little any given punishment, in its kind, duration, or 
relation to the nature of the crime or the criminal, has contrib- 
uted either to social defense or the reformation of the offender. 


xxiv AUTHOR’S PREFACE TO THIS EDITION 


The progress of the social sciences during the past quarter 
of a century, it is true, has been such as to compel some recog- 
nition from the legal world. Hence, in that quarter the alliance 
of law with sociology, psychology, and anthropology has been 
in terms admitted. This admission, however, has remained 
wholly a matter of theory: it has been followed by no modifi- 
cation of the legal systems. The lawyers have contented 
themselves with abstract pronouncements, such as that “the 
object of punishment is to reéstablish the juridical order 
of which crime is an infraction and, therefore, a disturb- 
ance,”’ or again that “every punishment should have for its 
primary object the reformation of the offender,” or else that 
“the punishment should secure society against a repetition 
of the crime.”” They have nevertheless wholly failed to furnish 
us with any proof of the fitness of the repressive measures 
which on their recommendation have been embodied in the 
codes. In every other department of science at the present 
day, the experimental method is dominant. The science of 
criminal law, although preéminently a social science, stands 
alone in refusing to acknowledge its supremacy. 

The chief purpose of this book, — first published many years 
ago and now for the first time made accessible to the English 
reader, — is the introduction of the experimental method into 
that science which, in its study of the criminal phenomenon, 
ought to seek the means best adapted to its extirpation. 
This aim of criminology ought to be equally that of criminal 
law. Before we can speak of reforming criminals, we must 
first consider whether criminals as a class or as individuals 
are susceptible of reformation, and examine the means neces- 
sary to effect such reformation. And if we would speak of 
securing society against criminal attack, we must begin by 
ascertaining whether there are punishments capable of dis- 
arming the criminal, and determining in what manner these 
are to be employed. To save theory from a useless labor it 
must be preceded by experience. 


AUTHOR’S PREFACE TO THIS EDITION XXV 


Il 


A further purpose of the present work is to harmonize 
judicial logic with the social interest. It cannot be gainsaid 
that from the moral standpoint individual responsibility is 
much lessened by bad examples at an impressionable age, by 
the contagion of the social environment, by traditions of race 
or family, by ingrained evil habits, by the violence of the 
passions, by the temperament, etc. But according to the 
juridical theories, every lessening of responsibility is an 
element of excuse for the criminal; punishments ought to 
vary in proportion to the greater or less importance attached 
to such element, and, when it is possible to establish the 
extreme force of the criminal impulse, ought to be reduced 
to an insignificant minimum. 

Now, there are but few cases in which the offender is with- 
out some extenuating circumstances of this kind. In fact, 
there is no crime in which it is not easy to discover them. 
It requires but a slight investigation and they swarm on all 
sides. In short, the only criminals who appear to us to be 
without excuse, are those for whom we have not taken the 
trouble to find it. It may be answered that after all it is 
simply a question of evil inclinations, and that the free will 
is always bound to assert itself. But, the question arises, 
how are we to distinguish the part played by these evil in- 
clinations from that which is played by the free will? What, 
moreover, shall we say to the data of anthropology, which 
demonstrate that the most dangerous criminals almost all 
exhibit a psycho-physical abnormality of organization? To 
make punishment depend on the moral responsibility would 
insure the acquittal of the most ferocious type of murderer. 
Once establish his extreme natural brutality or the irresisti- 
bility of his criminal impulses, and no shred of moral respon- 
sibility remains. The outcome in every case would be the 
proportionate diminution of punishment, according as the 
causes of the evil inclinations became better known and more 
evident. 


xxvi AUTHOR’S PREFACE TO THIS EDITION 


Thus repression in its exercise would operate in a relation 
wholly inverse to the perversity and incorrigibility of the 
criminal. It is idle to say that we are needlessly alarmed, 
and that the stage of declaring the impunity of crime will 
never be reached. The philosophic views of an epoch exert 
an irresistible influence even upon the most unwilling subjects. 
This principle is exemplified in the present condition of crim- 
inal justice, constantly invaded as it is by a current of erro- 

neous ideas to which it offers but a flimsy barrier. It is 
useless to protest against verdicts of acquittal or the leniency 
of judges. What we see is, after all, the triumph of judicial 
logic, but a triumph which is at the expense of social security 
and morality. For this condition, the sole remedy is the 
adoption of a different criterion of punishment, — the sub- 
stitution of the principle of social necessity for that of the 
moral responsibility of the individual. 

The spectacle of crime in a civilized society is much more 
grievous than in a barbarous tribe or in a group of savages. 
Its victim appeals much more strongly to our commiseration, 
because, relying upon the protection of the laws, accustomed 
to the peaceful adjustment of personal differences, surrounded, 
in a word, by the amenities of civilization, he has omitted 
those precautions for the defense of life and property, which in 
an uncivilized environment he assuredly would have adopted. 
The forms of brutal crime which persist in our day — murder, 
vape, arson, robbery, cruelties practised upon women and 
children, attacks of all sorts upon individual liberty — are 
the disgrace of contemporary civilization. 

Neither for the victim of crime nor the prevention of future 
crimes does society show sufficient concern. The fact that 
in civilized communities many thousands of persons annually 
lose their lives by direct murder or by murder as an incident 
to robbery,' — that vast sums of money become the booty of 


1 This is not an exaggeration. In European Russia alone, the number of 
homicide cases coming to the attention of the judges of instruction during 
the year 1901 was 15,236; in France the average annual number from 1896 
to 1900 was nearly 1200; in Italy, during the year 1899, 3587 cases of the same 


AUTHOR’S PREFACE TO THIS EDITION xxvii 


criminal activity, — to my mind presents a question infinitely 
more serious than almost any of the much debated topics 
of parliamentary discussion. Murder and robbery are facts 
the more hideous as existence becomes more peaceful and life 
less uncertain. Yet, sanguinary anachronisms as they are, 
we are content to regard them as deplorable but exceptional 
instances, — seldom viewing the actuality with our own eyes, 
we persist in believing that the danger of its repetition is 
exceedingly remote. 

But here statistical science steps in. Adding the figures, 
combining the scattered sums of human misery produced by 
human wickedness, it unrolls to us the scenes in a world- 
appalling tragedy. It shows us a field of battle littered with 
the remains of frightful carnage; it joins in a single heart- 
rending cry the groans of the wounded, the lamentations of 
their kindred; it causes to file before us legions of the maimed, 
of orphans, and of paupers; it blinds us with the light of a 
vast incendiary conflagration devouring forests and homes; 
it deafens us with the yells of an army of pirates. And in 
sinister climax, it reveals to us the author of these scenes of 
desolation — an enemy mysterious, unrecognized by history; 
— we call him the crrINat. 

The State does but little for our protection. Since, thanks 
to the legalists, criminal law is one thing and the measures 
necessary against malefactors another, action of the State 
has been rendered almost ineffective. It is an absurd thing 
that thousands of professional thieves are able to ply their 
calling in spite of the exertions of the police. It is equally 


crime were reported to the police. The average annual number of convic- 
tions for various forms of homicide (including infanticide) may be estimated 
as almost 10,000, if we combine the figures for the following countries: Spain, 
France, Italy, Austria, Hungary, Germany, Great Britain and Ireland, Bel- 
gium, Holland, Sweden, Norway, Denmark, and Russia (excepting, in the 
case of the last-mentioned country, Poland and the Caucasus). The statistics 
of the other European countries are not accessible. See, further, the table 
in Appendix B of this volume (post, p. 437) and what is said in connection 
therewith (post, pp. 438, 439). It is to be noted, moreover, that the number of 
convictions represent but a little more than one-third of the total number 
of criminals. 


xxviii AUTHOR’S PREFACE TO THIS EDITION 


absurd that the only punishments which need be feared 
have at best a merely conventional value and none whatever 
in the case of professional criminals.. Indeed, in certain cases 
these punishments represent a positive advantage to the crim- 
inal. After having been lodged, fed, warmed, and clothed, 
at public expense, he emerges a free citizen, and none has the 
right to remind him of his crimes. It is supposed that he has 
expiated his offenses, that he has paid to society what he 
owed and that henceforth he must be regarded as an honest 
man. All this is sheer rhetoric. The truth is that the criminal 
has paid nothing: the public, on the other hand, has defrayed 
the expenses of his maintenance; a new burden has been 
imposed on the taxpayer, and the damage which society had 
already suffered from the offense has been resultingly in- 
creased. The criminal has not undergone a moral reformation; 
the prison works no such wonders, — far from it. He is not 
intimidated, because our penitentiary systems have become 
so mild as to lose every intimidatory effect. Even if he has 
suffered from his imprisonment, he will soon forget; for the 
memory of physical sufferings is quickly effaced. The liber- 
ated convict, then, comes out of prison the same man who 
went in, and, moreover, is replaced in the environment from 
which he was taken, there to find the same temptations and 
encounter the same occasions which impelled him to a career 
of crime. 

What I have just said applies in general to the penitentiary 
systems of Europe. There are however exceptions. In 
France, especially, the question of criminality has been the 
subject of much attention. By means of laws directed against 
recidivists an effort has been made to check the activity of 
the habitual offender. Although of too restricted an appli- 
cation, the benefit of these laws has been manifest from the 
outset. Since their adoption criminality, especially in its 
more serious forms, has perceptibly diminished. It may be 
justly said that France is perhaps the only country of con- 
tinental Europe where the juridical theories concerning pun- 


AUTHOR’S PREFACE TO THIS EDITION xxix 


ishment do not hold absolute sway. The principle of defense 
against the natural enemies of society is much better under- 
stood than elsewhere, and to this all other principles have 
often been tacitly subordinated in the French legislation. 
Moreover, at the instance of Prins and Liszt, there has been 
organized an association —the “Union Internationale de 
Droit Pénal,” whose membership is composed of lawyers 
and judges who have broken away from the old metaphysical 
notions of punishment — for the experimental study of crime 
and criminals. From the new direction given by this asso- 
ciation to study of these subjects have resulted, in many 
European countries, laws, or proposed laws, relating to 
the repression of recidivism, the treatment of first ‘offend- 
ers and juvenile delinquents, and the individualization of 
punishment. 

The time has come to proclaim warfare on crime in the name 
of civilization as the watchword of penal science. We are 
dealing with a distinctly social function, — and one which 
ought not to be trammeled by the narrow views and faulty 
reasoning of the juridical school. 

In the popular view, the substantive law, procedure, and 
the judicial power itself too often seem to work in com- 
bination for the protection of the criminal against society 
rather than society against the criminal. To remove this im- 
pression and to justify the sacrifice of the many millions. 
annually expended in the struggle against crime  — a struggle 
which, up to the present time, has failed to yield adequate 
results, — this is the duty incumbent upon those directing 
the destinies of the State. 

In the great inventions which have changed the face of 
the world, the nineteenth century found its crowning achieve- 


1 Tt has been computed that seven European nations (France, Germany, 
England, Austria-Hungary, Italy, Russia, and Spain) alone expend 221,481,174 
francs annually merely for the maintenance of prisoners and administration 
of prison establishments. The total receipts from prison labor represent but 
a ninth part of that sum — 25,893,232 francs. If to the disbursement in 
question we add the expense of maintaining the police, our figures will assume 
immense proportions. 


XXX AUTHOR’S PREFACE TO THIS EDITION 


ment. The task of the twentieth century is to eradicate 
those traces of primitive barbarity which we know as crim- 


inality. II 


The present work has often been classed as belonging to the 
school of criminal anthropology.' If it be granted that of this 
science criminal psychology is the most important chapter, 
then I am quite willing to be considered a “rational anthro- 
pologist” (“anthropologiste raisonnable”) as Leveillé has 
called me. 


1 For the features which especially characterize my system, see Frassati, 
“La nuova scuola penale in Italia” (Turin, 1891); Dorado-Montero, intro- 
duction to my work: “Indemnizacién 4 las victimas del delito ”’ (Madrid, 
1893): Van Kan, “ Les causes économiques de la criminalité” (Paris, 1903). 
See further, G. Tarde, “La criminalité comparée”’; “‘ La philosophie du droit 
pénal”’ [American edition: “Penal Philosophy ” (Criminal Science Series, 
Boston, Little, Brown & Co., 1912)]; Prins, “‘Science pénale et droit positif ”” 
(Brussels, 1899); Saleilles, “‘L’Individualisation des peines” (Paris, 1898) 
[American edition: “‘The Individualization of Punishment” (Criminal 
Science Series, Boston, Little, Brown & Co., 1911)]; J. de Mattos, preface to 
the Portuguese translation of the present work (Séio Paulo, 1893); J. De 
Aramburu, “La nueva ciencia penal” (Madrid, 1887); Lozano, “La escuela 
antropologica y sociologica criminal” (La Plata, 1889); Proal, “Le crime 
et la peine” (Paris, 1891); Puglia, “Prolegomeni al diritto repressivo ” 
(1883); Vivetros de Castro, “A nova escola penal” (Rio de Janeiro, 1894); 
A. Marucci, “‘La nuova filosofia del diritto criminale” (Rome, 1904); Mendes 
Martins, “Sociologia criminal” (Lisbon, 1903); and Havelock Ellis, “The 
Criminal” (London, 1890). 

The principle of enforced reparation (“indemnisation”) in lieu of punish- 
ment, which in certain classes of offenses and in the case of certain offenders, 
I have advocated for the past twenty-five years and defended before many 
gatherings of scholars, particularly in the Penitentiary Congress of Rome, 
1885, the Congress of “‘L’Union Internationale de Droit Pénal,” at Brussels, 
1889, and Paris, 1893, and the International Penitentiary Congress of Brussels, 
1900 (see Appendix A, post, pp. 419-435), has made great advances since the 
appearance of the last French edition of the present work, and I am informed 
that even now (1911) it is under consideration by the French Minister of 
Justice. 

Much the same may be said of the theory of individualization of punish- 
ment which I suggested and outlined in a general way. It has been subse- 
quently worked out in detail by others, notably by Saleilles in his interesting 
work which is cited above. This theory progresses steadily. Especially in 
the matter of juvenile criminality has it impressed itself upon legislation. 
The conditional sentence and those improvements in penal science which have 
reached their highest development in the United States, namely, the juvenile 
court, the probation system, and the indeterminate sentence, all bear witness 
to its practical value. 


AUTHOR’S PREFACE TO THIS EDITION = xxxi 


No success, it is true, has attended the effort to obtain 
an accurate external description which will enable us to dis- 
tinguish the criminal from other men. But this in no way 
trenches upon the proposition that there exists in criminals 
a psychic anomaly differentiating them from the generality 
of men. By some physiologists this proposition has been 
regarded as destitute of scientific value. Yet the very writers 
who refuse to recognize, as of any value whatsoever, certain 
physical signs apparently found in criminals, at the same time 
distinctly assert that a correlation necessarily exists between 
the moral character and the physical constitution of the in- 
dividual. They do not believe in the possibility of defining 
the differences in this respect between individuals, because 
such differences must be sought in the histologic organization, 
in the composition of the blood and the nerve-fibre, and in 
the functioning of the organs. “The physiologic actions,” 
it is said, “are largely the result of molecular phenomena, 
and we are very far from possessing an anatomy of molecules.” 
It is plain, however, that this argument in nowise contradicts 
the idea of criminal anomaly: it means only that the sub- . 
stratum of this moral anomaly is unknown to us. 

The physiologist has no reason for refusing to align himself 
with the new school. Since we do not reject the hypothesis 
of a correlation between the criminal’s instincts, impulses, 
defect of moral sense, and the constitution (albeit impossible 
to ascertain) of his nerve-cells, there is nothing in our doctrines 
which the physiologist may not freely accept. 


The charge of fatalism which has been brought against 
our school is wholly without foundation. It will be seen in the 
sequel that we believe in utilizing for the moral progress of 
society all the new discoveries of experimental science. This 
accusation is due to the placing of a wrong construction upon 
our ideas. It has been thought that we believe man, and con- 
sequently the criminal, to be incapable of transformation 
and never to act except in a determined direction. No such 


xxxii AUTHOR’S PREFACE TO THIS EDITION 


error has at any time found place in our views. What ex- 
perience has demonstrated is that the individual acts always 
in the same direction, so long as his intellectual and moral 
conditions remain unchanged and he finds himself in the same 
external circumstances. This is why we deem it the height 
of folly to hope for the reformation of the criminal by im- 
prisonment or any other kind of punishment, if, as soon as 
it is ended, he is remitted to the same environment and the 
same conditions of existence as before. But by no means do 
we believe it impossible to transform the activity of the offender. 
And this will be brought about when his environment has 
been changed, when his new conditions of existence con- 
vince him of the necessity of honest labor, and when, finally, 
he sees that the predatory life has lost for him all attraction 
and profit. 

It is rather our opponents who deserve this imputation. 
For, while recognizing the inefficacy of the prevailing penal 
systems, they decline to admit that there is anything to be 
changed. According to them, crime has always existed and 
must always be endured as one of the evils which afflict 
society. Holding such views, clearly it is not for them 
to call fatalistic a school whose aim is to discover the surest 
and most effective means of removing this blot from civiliza- 
tion. 

Our opponents are equally open to the other charge which 
has been laid at our doors, that of materialism. For it is 
they who have made a tariff of crimes, and are responsible for 
a system of laws in which the objective fact is alone considered, 
and the nature of the criminal counts for nothing. It is they 
who have materialized criminal law. The positivism which we 
advocate, on the contrary, is purely a question of means. It 
signifies no philosophic system but simply the experimental 
method. 


We take fully into account the influences of the physical 
and moral environment, and this is exactly why we are unable 


AUTHOR’S PREFACE TO THIS EDITION xxxiili 


to understand a theory which leaves the offender exposed 
to these — the very influences which have contributed to his 
degeneration. But the contention that, in lieu of punishing, 
we should aim to modify the environment and thus suppress 
the causes of crime, is not one entitled to serious regard. 
The law-maker cannot accomplish that which is the work of 
time alone. 

What manner of legislation could effect the abolition of 
misery and ignorance, the disappearance of temptations, the 
suppression of cupidity, ambition, vanity, and all the other 
passions which agitate mankind? It is impossible for the 
State to entrust everything to the slow and sometimes inter- 
mittent progress of civilization. And furthermore, would not 
this same progress be violently interrupted if repression 
were to cease or be relented? We leave to Tolstoi his dreams. 
We admire him as a philanthropist and writer, but his theory 
of non-resistance to evil, we cannot even admit as a topic of 
discussion. The unconditional pardoning of all offenses means 
nothing else than the oppression of the honest citizen by the 
vicious and criminal. The struggle against crime ought not 
to cease for a single instant. In this lies the first duty of the 
State, for the first right of the citizen —I would say, even 
the principal reason for society’s existence — is that he be 
guaranteed his physical integrity, his freedom of action, 
and the enjoyment of his lawful property. Far from allowing 
itself to be disarmed, the State in this warfare must constantly 
aim at the employment of more and more perfect weapons, 
from time to time discarding those which experience has 
shown to be unavailing. 

But to fight with any hope of success we must know our 
enemy. The enemy which we are called upon to face is un- 
known to the followers of the juridical school. Knowledge 
of him comes only from long-continued observation in prisons, 
penitentiaries and penal colonies. To those who have studied 
him under such conditions will the future commit the task of 
making criminal law responsive to social necessities. 


xxxiv AUTHOR’S PREFACE TO THIS EDITION 


IV 


My conviction that the principles of the prevailing criminal 
law were far from being at one with its true object, led me 
to publish, in 1876-78, some essays which later became my 
first book: “Di un criterio positivo della penalita.”! The plan 
there outlined was later completed in my “Criminologia.’’ 2 
This latter I personally translated into French, since, on ac- 
count of the changes which I wished to make, it would have 
been impossible to entrust the work to another. For its in- 
dulgence in overlooking my presumption, as well as for many 
encouragements received at its hands, my cordial thanks are 
due to the French public. 

When the question of an English version arose, I expressly 
requested that it be made from the most recent French edi- 
tion — that of 1905, —rather than from the last Italian 
edition. Inasmuch as the French translation was my own 
work, no possible objection could exist to this course. My 
decision was prompted by the thorough revision — in fact, 
the almost entire recasting — which the book had undergone 
since its last appearance in Italian. For one thing, it con- 
tained the answer to a number of objections which had been 
urged against my views.* Again, the many changes super- 
vening in European criminality had to be taken into account. 
And finally, my own ideas could not help experiencing some 
modifications. Accordingly, some statements of too absolute 
a nature were eliminated, and while the basis of my work 
was preserved intact, my expression in other instances was 
given a different form. Time may frequently show to an 
author the inadequacy or obscurity of a passage which at 
the moment of writing appeared best to represent his 


1 (Naples, 1880). 

2 (Turin, 1885). 

8 That all my critics were not answered is due to the purely physical reason 
that it would have been a matter of dealing with hundreds of books, pam- 
phlets, and articles in which my theories came under consideration. In 
particular, I left unanswered such criticisms as attacked the experimental 
method which I had endeavored to follow. 


AUTHOR’S PREFACE TO THIS EDITION xxxv 


thought. It may often convince him of the existence of 
matter quite irrelevant or, indeed, disclose the presence 
in some portion of his work of a wholly unsuspected 
confusion. 

But there are some ideas which neither the most learned 
criticism nor my own later examination, has influenced me 
in the slightest degree to modify. Such is the idea of “natural 
crime” as opposed to crime which is merely legal or conven- 
tional. I might concede the possibility of it being clothed 
in a different form of words, but I believe the fundamental 
notion of “natural crime” has come to stay. It has been the 
subject of discussion for twenty years and is still a living topic. 
It will not be lost, because it exists in the universal conscious- 
ness. It will furnish the means of establishing an international 
penal code — an undertaking which is awaited by the civilized 
world.! An international code of this description will be a 
manifestation of that universal solidarity which demands the 
mutual aid of the nations in the struggle against crime. 


1 The outlines of such a code will be found in Part IV of this work (post, 
p. 403). 


% + . 
WEG yi oe, 
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“) 





CONTENTS 


GENERAL INTRODUCTION TO THE MopERN CRIMINAL SCIENCE SERIES . 
OO TTC So 2) Ra a ee a RE eet OO A a oR 
INTRODUCTION TO THE ENGLISH VERSION, BY E. Ray STEVENS. .. . 
AuTuor’s Preracre To THis EpITION .........2+2ee-. 


PART I 
CRIME 


CHAPTER I 
Tue NaturRAL CRIME 


1. Tae Neep or a Socrotoaic Norion ofr CRIME. ....... 
2. Mernop or ATTAINING THE Socrotogic NoTION ...... 
$. Toe Moran Sensp In GENBRAL .........2.2.6-. 
4. Tue Constituent Instincts or THE Morau SENSE — THEIR 

IRAE cL UNI Tee Wiel PAL 53 Be pe aS all en says cloth lel te 
5. RATIONALE OF THE NaTuRAL CRIME ......2..... 
6. Tae DetooraTion or CRIMINALITY. ........... 
7. CRITICISMS OF THE THEORY OF NATURAL CRIME ....... 
Serer AMS: VIEWS OF TARDE 9) 6.006) eos eee ies) eee a is 


COP CO? CO? CO? COR COR COR COR 


CHAPTER II 


Tue Lecat Notion or CRIME 


§ 1. Inapequacy or THe Leagan Notion. ........... 
§ 2. Tue Neep or Dieect Srupy or THE CRIMINAL. ...... 
PART II 
THE CRIMINAL 
CHAPTER I 


CRIMINAL ANOMALY 


eR OPOTAMIIC TATA | gj 030 sede Chie oe, Wes uta igs Oo calb's 
PM IIET VAR MOMEA EY oh te at ee Vins RO Ay ots ee ar 
HEREDITARY TRANSMISSION OF CRIMINAL PROPENSITIES. . . 


6Or 6On 6OP 
0 «me 


XXXViii CONTENTS 


§ 
§ 
§ 
§ 


CO? COR COR CO? COR 


Cor cor 


COR 0Or COP COR cor 


COR COA CO 


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St 


PAGE 
Tue DISTINCTION BETWEEN Morat ANOMALY AND PaTHOLOGIC 
[3.8 Al SN RIOR eer URE ee aTURM EPC MaRS So, hl cos, ani a ae 95 
HyYpoTtHEsEs AS TO THE SouRcE oF Moran ANomALY ... 105 
CLASHES OR KCRIMINATBS SS 6 eat oy Se eget ee es lll 
Tuer Same: Ferris CLASSIFICATION .........-.% 132 
CHAPTER II 
Socrat INFLUENCES 
CEVITATATIONS Fea sere ae ao el ine haa Se RO 135 
Sen OSEROOE ocr ae nations ce Pa heen i aoe. Nan eae a 137 
BE WERCHONE Sede ere akira fe eke RB Lg TESS BRIS YN a ee 140 
Economic Conpitions: THe Soctauist THEsis. ...... 142 
Tue Same: THeory or Direct PRopoRTION BETWEEN CRIME 
AND MATERIAL PROSPERITY. . ......-+e ce ees 165 
CHAPTER III 
INFLUENCE OF THE LAws 
LEGIsLATION AFFECTING THE CAUSES OF CRIME...... 178 
Pent, LAs fo chine teased a ae On ee ngiern ahaa AOU 
PART II 
REPRESSION 
CHAPTER I 


Tue Law or ADAPTATION 


ELIMINATION AND REPARATION: THEORY AND APPLICATIONS . 217 
Tue Same: In Retation To THE DirFERENT CONCEPTIONS OF 


POUNISEMOONG 8 ROR COR FER RH Ren mates eet eM 230 
TNTIMIDATION a) 65. ES arate Ue Eo eeiad rack ree Te 239 
SEEROPION 858 i ee CIS) Sade a oe eet Rear 251 
Tue CORRECTIONALIST THEORY ....- ++ ss ee eee 255 

CHAPTER II 


Tue Existrnc Tueorres oF CriminaL Law 


GENERAL CONSIDERATIONS ......-+-+ +s eee eee 270 
MORAL: DR RSPONATHELITY 56554! Soul auctcc re eats de elce 273 
Tre asks’) Teper ee eee ae p ase oe oe ae oes 279 


i ll 


COP CO? COR COR CO? 60? O07 COR 


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602 60? CO? COR 002 60? 002 COR ao 


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SHA AXP XY 


CONTENTS xxxix 


PAGE 
Tup Same: DRUNKENNESS .......5..0-0208000-8 287 
epee SAGER TE RPNOGIS 0 ote fet ene ae eileen ee 289 
PET SAME WA NO os el Cie Le ee ee EE GR i ey 290 
PROPORTIONALITY BETWEEN CRIME AND PUNISHMENT .... 294 
Crmanat ATTEMPT 20005 60 eh PER AEH Rar Bist 308 
Crmgnan PARTICIPATION «2000s se ee ee 321 
Piurauity or OFFENSES. ........-.-2-+2ee00- 323 
RUMOIV IRIE acl eRe eh reed he ic eee ira Le ae oh Re Me Mike Se 325 
EXTENvATING CIRCUMSTANCES .........-.-24.542. 329 
PUNISHMENTS OF THE PRESENT SYSTEM .......... 330 


CHAPTER III 


Derects oF THE Existinc CrimiInaL ProcepUuRE 


Tue DistincTION BETWEEN PusLic AND Private CRIMINAL 


PACT SES OE Te 2 Sal ee a 338 
ENFORCEMENT OF THE JUDGMENT FOR DAMAGES ...... 340 
Tun Jupictan INVESTIGATION. . .......20606.08 68 e 8344 
OED EEE cif 10 op OM ange Od elec OAL ONO as a 345 
tPA VHIATHS- THE DURY 2 ie ele tk) etwas ieee 355 
CananaL TrRiAis:: tam JupGms .).... 2. ee 364 
PRESCRIPTION OF CRIMINAL ACTIONS ....... Sal ats Aas ys 
PRESCRIPTION OF PUNISHMENTS ..........624068-. 367 
Ne UNPPOV I: CEMMENCY (2650 3 5 ins p) 6 Bie ne ojeue eles ayes 368 

CHAPTER IV 


Tue Rationat System or PUNISHMENT 


Tae PUNISHMENT OF MURDERERS. ........20.06-. 372 
Tue PUNISHMENT OF VIOLENT CRIMINALS 
(a)5, Homiciar, Orrm@npmns 0. 20 ee oa 382 
(6) Orrenpers Gurury or Acts or Ser1ous PuysicaL OR 
1.1 FeS Ta 4 AN Oe 10 24 ga aN RE RR I CTA 386 
(ec) Yournrun OrrenDERS. ....:.....-+268. 387 
(dq) Orrenprers Derictent ONLY IN Morat TRAINING OR 
PR MTTRAIN eS) GCN CIN eV Aiea te tes 6 389 
Tue PUNISHMENT OF CRIMINALS DEFICIENT IN Prosity: 
(a) Instinctive anp Hapiruat OrreENDERS ...... 391 
(6) Non-Haprruat OFFENDERS. ..........-. 394 
Tue PunIsHMENT or Lascivious CRIMINALS ........ 399 
Casres ror RETENTION oF ExistTING PUNISHMENTS .... . 399 


xl CONTENTS 


PART IV 
OUTLINE OF PRINCIPLES 
SUGGESTED AS A BASIS FOR AN INTERNATIONAL 


PENAL CODE 
PAGE 
Division J. Generau PrRINcIPLES ......2.....: 405 
Division II. System or PUNISHMENT. ......... 410 
Division TT. | Procepures 05 ae eee 414 
APPENDICES 


Appenprx A. Enrorcep REpPARATION AS A SUBSTITUTE FOR Im- 
PRISONMENT: Paper OF R. GAROFALO READ BEFORE 
THE INTERNATIONAL PENITENTIARY CONGRESS OF 


BRUSSELS. TODO Sica RO ee ean ree ee sae ate 419 
Appenpix B. ComparRaTIVE STaTIstics OF CRIME ........ 436 
InpEx or AUTHORS 9 tat aR Vet beta tibia ge ake evel Sele oh elt ae 445 


Supsecr INDEX oo 6k eae Sees eh auth te ABLE Ree cae Giese ne he astiiee 449 





Le) {t 


¥ uo, 





CRIMINOLOGY 


CHAPTER I 
THe Naturat CRIME 


§ 1. The Need of the Sociologic Notion of Crime. 

§ 2. Method of Attaining the Sociologic Notion. 

§ 3. The Moral Sense in General. 

§ 4, Constituent Instincts of the Moral Sense — their Analysis. 
§ 5. Rationale of the Natural Crime. 

§ 6. The Delimitation of Criminality. 

§ 7. Criticisms of the Theory of Natural Crime. 

§ 8. The Same: Views of Tarde.! 


§1. The Need of a Sociologic Notion of Crime 


The Lack of a Sociologic Definition of Crime. — Toward the 
close of the 1800s the study of the criminal from the point of 
view of the natural sciences began to engage marked attention. 
As a result, his anthropologic and psychologic descriptions 
have been noted; he has been presented as a type, as a 
variety of the “genus homo.” But when we come to consider 
how this theory may be applied to legislation, serious diffi- 
culties are encountered. By no means every person who is 
an offender according to legal standards answers the descrip- 
tion of the naturalists’ criminal man — a circumstance which 
has thrown doubt upon the practical value of such studies. 
Nor could the case be otherwise, from the very fact that 
although the naturalists speak of the criminal, they have 
omitted to tell us what they understand by the word crime. 
This task of definition they have left to the jurists, without 

1 [In this chapter, §§ 1 and 2 = § [I of original; §§ 3, 4, and 5 = §§ I, III, 


and IV, respectively; § 7 = note, original, pp. 49-52; and § 8 = § IIc. u.— 
TRANSL] : 


4 CRIMINOLOGY [g 1 


attempting to say whether or not criminality from the legal 
standpoint is coterminous with criminality from the sociologic 
point of view. It is this lack of definition which has hitherto 
rendered the naturalists’ study of crime a thing apart and 
caused it to be regarded as a matter of purely scientific interest 
with which legislation has nothing to do. 

Crime not properly a Juridical Notion. — To my mind, then, 
the initial step in our investigation should be the attainment 
of the sociologic notion of crime. It will not do to say that 
we are dealing with a legal notion and that consequently its 
definition belongs to the jurists alone, We are here concerned 
not with a technical term, but with a word which expresses 
an idea accessible to every one, irrespective of his knowledge 
of the law. The law-maker has not created this term, but 
has borrowed it from the popular language. He has not 
even defined it. All that he has done is to group a certain 
number of acts and call them crimes. This is why, at the 
same period of time and often within the confines of a single 
nation, we find a given act in one locality treated as a crime 
and in another not punished at all. It follows that the legal 
classification can in no way foreclose sociologic investigation. 
For the solution of his doubts regarding the boundaries of 
criminality, the sociologist cannot turn to the man of law, 
as he would to the chemist to learn the nature of salts or acid, 
or to the physicist to be informed of the notion of light or 
electricity. This notion of crime he must seek for himself. 
Only when he will have taken the pains to tell us what he 
understands by crime, shall we know what criminals he is 
talking about. In a word, we must arrive at the notion of 
the natural crime. In this expression, be it noted, the word 
“natural” is given the meaning of that which is not conven- 
tional, of that which exists in a human society independently 
of the circumstances and exigencies of a given epoch or the 
particular views of the law-maker. I employ the phrase 
“natural crime,” because I believe it to be the clearest and 
least inexact —I do not say the most exact — form of words 


§ 2] THE NATURAL CRIME 5 


to designate those acts which no civilized society can re- 
fuse to recognize as criminal and repress by means of 
punishment. 


§ 2. Method of Attaining the Sociologic Notion 


Analysis of Facts Inadequate. — The first question to which 
we must address ourselves is whether it is possible to assemble 
a group of acts which at all times and in all places have been 
regarded as crimes. The inquiry is not whether all that which 
is crime at the present day and in modern society has always 
and everywhere been so regarded. Such a question almost 
answers itself. Is it not familiar learning that by the customs 
of many peoples murder to avenge murder was not only 
tolerated, but enjoined as the most sacred of filial duties, — 
that in the course of history the duel, at one time, has been 
visited with heavy penalties, at another, has been so legalized 
as to become the principal form of legal procedure, — that 
heresy, witchcraft, and sacrilege, once considered crimes of a 
most detestable character, have today disappeared from the 
statute-books of all civilized nations, — that the pillage of 
foreign vessels driven ashore by stress of weather was in some 
countries at one time authorized by law, — that, for centuries, 
many peoples who are now civilized, employed brigandage 
and piracy as their principal means of livelihood, — and that 
finally, quite apart from the matter of savage customs, we 
have but to go outside of the European races to find semi- 
civilized societies where infanticide and the sale of infants 
are authorized, where prostitution is an honorable calling, 
and adultery has even become an established institution? 
Is it not equally true that in civilized Europe, within a com- 
paratively recent period, to differ in political opinion from 
those in control of the State was esteemed a crime of the great- 
est magnitude? Is it not a fact of history that the death pen- 
alty has been inflicted for the cornering of breadstuffs or their 
sale at prices in excess of the maximum fixed by law? Such 
matters are too well known to need dwelling upon. The sole 


6 CRIMINOLOGY [$2 


point of inquiry is whether, among the crimes and offenses 
recognized by existing laws, there are any which, at all times 
and in all places, have been recognized as punishable acts. 
When we think of certain hideous crimes, such as parricide, 
assassination, murder for the sake of robbery, murder from 
sheer brutality, . . . the question would seem to require an 
affirmative answer. But a slight investigation serves to dispel 
this idea. From the descriptions of savage customs furnished 
by ancient and modern explorers, we learn that among many 
tribes parricide has been dictated by religious custom. A 
sentiment of filial duty impelled the Massagetz, the Sardi, 
and the Slavs and Scandinavians of prehistoric times, to kill 
their parents when the latter had become helpless from sick- 
ness or extreme old age. It is said that the Fuegians, the 
Fijians, the Battas of Sumatra, the Chukchi, the Kamcha- 
dales, and the aborigines of New Caledonia, all followed this 
atrocious practice. Murder from sheer brutality is still 
frequently practised by the chiefs of numerous savage tribes, 
especially in Central Africa. It is even allowable for a warrior 
to kill a man for the purpose of exhibiting his strength or 
dexterity, or to exercise his arm, or to try his weapon; the 
public conscience is not in the slightest degree disturbed. 
We have stories of cannibal feasts from Tahiti and elsewhere. 
Finally, murder for the purpose of robbery has been constantly 
practised by the members of one savage tribe upon those of 
another. 

Analysis of Sentiments the True Method. — But if we thus 
are compelled to relinquish the idea of collecting a group of 
facts universally hated and punished, it by no means follows 
that the notion of the natural crime is impossible of achieve- 
ment. To attain it, however, we must change method: 
we must lay aside the analysis of facts and undertake that of 
sentiments. Crime, in reality, is always a harmful action, 
but, at the same time, an action which wounds some one of 
the sentiments which, by common consent, are called the moral 
sense of a human aggregation. Now, the moral sense has 


§ 2] THE NATURAL CRIME 7 


developed but slowly: it has varied and continues to vary 
according to circumstances of race and time. Each of the 
sentiments of which it is composed has from time to time 
undergone perceptible augmentation or diminution of strength. 
Hence it is that there exist wide differences in ideas of morality, 
and as a necessary result, differences not less considerable 
in this species of immorality without which no harmful action 
can ever be regarded as a crime. We must endeavor, then, 
to ascertain whether, in spite of the lack of uniformity in 
the emotions excited by acts differently appreciated by differ- 
ent aggregations, there is not a constant character in the 
emotions aroused by acts which are appreciated in an identi- 
cal manner, — in other words, whether the difference is not 
one of form rather than of substance. Reference to the evolu- 
tion of the moral sense can alone throw light on this question. 

The origin of the moral sense is attributed by Darwin to 
instinctive sympathy for our fellow beings, by Spencer to 
the mental process which, impressing upon our ancestors the 
necessity of obeying certain precepts of conduct, has become a 
habit of mind hereditarily transmitted to posterity and trans- 
formed into an instinct. These fundamental moral intuitions, 
then, appear to be: “the results of accumulated experiences 
of Utility, gradually organized and inherited” so that “they 
have come to be quite independent of conscious experience. 
. . . The experiences of utility organized and consolidated 
through all past generations of the human race, have been 
producing corresponding nervous modifications, which, by 
continued transmission and accumulation, have become in us 
certain faculties of moral intuition — certain emotions re- 
sponding to right and wrong conduct, which have no apparent 
basis in the individual experiences of utility. . . . Preferences 
or aversions are rendered organic by inheritance of the effects 
of pleasurable and painful experiences in progenitors.’ ! 
Whatever may be thought of this hypothesis or of Darwin’s 
theory of instinctive sympathy, it is certain that every race 

1 Herbert Spencer, “The Data of Ethics,” c. vir. 


8 CRIMINOLOGY [$2 


today possesses a sum of moral instincts which are not due to 
individual reasoning, but are the inheritance of the individual 
quite as much as is the physical type of his race. Some of 
these instincts may be noticed in the child, not before the 
intellectual development begins to reveal itself, to be sure, 
but certainly before he is capable of the difficult mental proc- 
ess necessary to convince him of the indirect individual 
utility of altruism. Likewise, the existence of the moral sense 
alone can explain the solitary and obscure sacrifices which 
men are sometimes led to make of their most vital interests in 
order not to violate what seems to be their duty. Say as we 
will, that altruism is only enlightened egoism, it is nevertheless 
true that in frequent instances egoism would be much the more 
useful to us, would spare us many an ill or enable us to attain 
what we most keenly desire, with nothing to fear either for the 
present or the future. The knowledge that a man will suffer 
an evil or reject a benefit, with no thought of the utility of his 
sacrifice, compels us to recognize the existence of a sentiment 
which depends on no power of reasoning, although, according 
to the hypothesis above mentioned, such sentiment, inherited 
by us and for which we deserve no credit, may have had a 
utilitarian origin in our remote ancestors. As before indicated, 
Darwin himself, without the aid of this hypothesis, comes to 
the same conclusion. “Although,” says he, “man, as he now 
exists, has few special instincts, having lost any which his 
progenitors may have possessed, this is no reason why he 
should not have retained from an extremely remote period 
some degree of instinctive love and sympathy for his fellows. 
. . . At last man comes to feel, through acquired and perhaps 
inherited habit, that it is best for him to obey his most per- 
sistent impulses. The imperious word ought seems merely 
to imply the consciousness of the existence of a rule of conduct, 
however it may have originated.” ! 

Moreover, if morality were simply the product of individual 
reasoning, plainly the most intelligent persons would be the 


1 Darwin, ‘The Descent of Man,” Part I, c. rv. 


§ 2] THE NATURAL CRIME 9 


most honest. The higher the intelligence, the easier would it 
be to attain the idea of altruism — the conception of the high- 
est morality which, according to the positivists, consists in 
the completest possible fusion of egoism and altruism. We 
do not say that the opposite is true, but assuredly instances 
are not lacking of highly intelligent men who at the same time 
are thoroughly dishonest. On the other hand, we often en- 
counter persons of very limited intelligence who set their 
faces against the least departure from the severest standards 
of moral conduct. And why so? Clearly not from any under- 
standing on their part of the indirect utility of what they do, 
but solely because they feel obliged to respect the moral 
precepts, and this even where religion and the law of the land 
are silent. 

We must take as established, then, the existence of the 
moral sense of a race of people, created, like all the other 
sentiments, by evolution, and transmitted from generation to 
generation, either as the effect of psychologic heredity alone, 
or as the effect of such heredity combined with the imitative 
faculties of the child, and the influence of family traditions. 
But since the moral sense is a psychic activity, it may be sub- 
ject to change and infirmity, may become diseased, may even 
become entirely lost. It may be wanting from birth as a result 
of some psychic monstrosity which, like other monstrosities 
to be found in the human organism, we are compelled, in the 
absence of a better explanation, to attribute to atavism. In- 
numerable gradations exist “between the highest energy 
of a well-fashioned will and the complete absence of moral 
sense.” 1 

It is not a matter for astonishment, therefore, if, in a race 
morally advanced, we find a number, more or less great, 
of individuals who exhibit an utter absence of morality. 
These are psychic anomalies — exceptions ‘similar to physical 
monstrosities. 

The question is rather in what measure does this moral 

1M audsley, “Responsibility in Mental Disease,” c. 1. 


10 CRIMINOLOGY [$3 


sense vary through time and space, — what it is at the present 
day among the European races and the civilized peoples of 
other races, what it has been in the past, and what it will be 
in the future. It is further to be inquired what part, if any, 
of this moral sense is to be detected in the oldest human 
aggregations, what were the moral instincts which held sway 
in the age of an inferior civilization, and what the instincts 
which, scarcely embryonic in that day, have since developed 
into the basis of public morality. 

Prehistoric man need not detain us. In the present respect 
we know nothing about him. Savage tribes which are either 
degenerate or insusceptible of development we may equally 
pass over, since, properly considered, they are anomalies of 
the human species. Our inquiry is directed to putting in 
distinct relief the moral sentiments which the civilized part 
of mankind may be said definitely to possess — the sentiments 
absolutely exacted by the necessity of social coexistence, which 
form the true contemporaneous morality, susceptible not of 
loss but of ever-increasing development. The result will not 
be precisely the “recta ratio” of Cicero, “nature congruens, 
diffusa in omnes, constans, sempiterna,” but it will be the 
“recta ratio” of the higher races of mankind in their present 
stage of civilization — a stage which has raised to a nearly 
equal level all peoples whose dominant activities are those of 
peace. 


§ 3. The Moral Sense in General 


Absolute Morality. — Our attention, be it noted, is to be 
confined to the average moral sense of the whole community. 
There are always persons morally superior to the social aver- 
age, just as there are those who do not reach it. The former 
are such as have by their own efforts attained absolute moral- 
ity, — according to Spencer, that ideal of conduct attainable 
by society as a whole, in which there exists a complete fusion 
of the sentiments of a rational egoism with those of an en- 
lightened altruism. Of such idealists, however, we find but 


§ 3] THE NATURAL CRIME 11 


1 
few; and they cannot do much to advance their times or 
accelerate evolutionary progress. As has been remarked by 
a learned author, the establishment and spread of the religious 
and moral idealism of Christianity, by which the human race 
is conceived as a single family under God, became possible 
only when Rome, maintaining relations with all the known 
world, had united nearly all the civilized peoples in a single 
empire — this Rome which, in the words of the poet, 


. . . gremio victos . . . sola recepit, 
Humanumque genus communi nomine fovit.” 


“Without this condition, the ethics of Christianity would 
perhaps have failed to find a soil favorable to their de- 
velopment and permanence. . . . The moral ideas of a people 
have never emanated as a whole from a given philosophic 
system, any more than have the by-laws of a corporation.” 4 

Relative Morality.— This capital of moral ideas is the 
elaborated product of the past centuries, transmitted to us by 
heredity with the aid of tradition. This is why in every age 
there has existed a relative morality, consisting in the adapta- 
tion of the individual to society. A morality still more 
relative exists in every section of the country and in every 
social class: this is what we term “social usage ” (“‘moeurs”’). 
As long as the individual has conformed to the principles of 
conduct generally received in the people, the tribe, or the caste, 
to which he belongs, he cannot be said to have acted immorally, 
however much his conduct may fall short of absolute morality. 
Thus, slavery, for example, judged by ideal standards, is an 
immoral institution; in a perfect human society, there can 
be no such thing as ownership of one man by another. 
But does this give us the right to conclude that the slave- 
owners of the ancient world were immoral? The tendency of 
that day to an ideal morality manifested itself in the sentiment 
which impelled the most humane masters to emancipate such 
of their slaves as had shown marked zeal and fidelity, or by 
reason of their intelligence, attainments, and special aptitudes, 


1 Schdffle, “Bau und Leben des socialen Korpers,” ¢. 5, ii, mr (1881). 


¢ 


12 CRIMINOLOGY [$3 


were capable of making their own way and assuming a better 
position in society. 

Variations in Morality. — Of the wide differences existing 
in many respects between the morality of different peoples, 
or of the same people at different periods, it would be unprofit- 
able to multiply illustrations. Savage tribes and barbarous 
nations furnish examples of usages which to our eyes seem of 
incredible immorality. Although modesty appears to be an 
absolutely natural instinct, yet we read of human aggregations 
in which complete nudity is the fashion, and where custom 
prescribes that the consummation of marriage take place in 
public. Captain Cook, the discoverer of the Sandwich Islands, 
describes an incident of this character which he there wit- 
nessed — a circumstance which elicited no astonishment from 
a contemporary jurist, since, as the latter pertinently sug- 
gested, marriage ought to be celebrated by public act. Xeno- 
phon speaks of a similar custom among the Mosynceci.! 
We read also of the Spartan maidens wrestling naked in the 
gymnasia. Even at the present day, the Japanese lady 
makes no scruple of receiving visits during her bath, while 
her humbler sister may be seen taking her plunge in a barrel 
set in the middle of the public street. 

Although, in the kind and degree of its civilization, the 
classic world was not far removed from our own, we find 
there prevailing usages which were the complete negation of 
modesty, — witness the celebration of certain mysteries of 
nature; the cult of the god Priapus and the processions in 
his honor; the religious prostitution of Cyprus and Lydia; 
the transfer of wives, instances of which occurred in Rome; 
the adultery which was permitted by the customs of Sparta 
and encouraged by the husband, when the marriage had failed 
to result in offspring; those strange attachments which the 
Greek writers speak of as a thing not only tolerated, but even 
looked upon with approbation;? and the practice of incestu- 


1 Xenophon, “ Anabasis,” V, 19. 
2 Owing to what he considered its honorable character, Solon prohibited 
this relation to any but freemen. (Plutarch, Life of Solon.) 


§ 3] THE NATURAL CRIME 13 


ous marriage followed in the Pharaonic families, as well as 
by their Greek successors, the Ptolemies. 

Superficial Rules of Conduct.— But leaving history, 
_ let us turn to contemporary society. Here, at the outset, 
we discover certain precepts of conduct constituting what is 
known as usage. Of these, some are common to all the 
strata of society, some peculiar to separate classes, associa- 
tions, and groups. Everything is the subject of regulation, 
from the most solemn ceremonial to the matter of personal 
salutation and individual dress. Not only is it decreed 
what phrases are proper under given circumstances, but the 
manner of expression and the inflection to be lent to par- 
ticular words are equally prescribed by usage. ‘Those who 
do not conform to such rules are called, sometimes eccentric, 
sometimes ignorant or ill-bred; they excite our mirth or pity, 
sometimes our contempt. 

Many things permitted in one class or association are else- 
where strictly forbidden. The season, the place, the hour, the 
object of a gathering, each has its influence upon the rules of 
conduct. Thus, a lady must appear décolletée at a dinner or 
an evening party, while in making an afternoon call such a 
costume would be entirely inappropriate. So, a gentleman 
who has just been presented to a lady at a ball, is acting in 
conformity with social usage, when, asking her to dance, 
he clasps her waist to lead her through a waltz, — although 
on any other occasion, except in the intimacy of love, such 
an action would be deemed an unpardonable familiarity. 
Each of our movements is dictated by an established usage; — 
scarcely any of our actions but is subject to some rule. Tradi- 
tion, education, and continual example oblige us unquestion- 
ingly to follow these precepts. 

Morality Proper.— But above all transitory and special 
laws of this character, we find others of a much more general 
nature, and, like the solar ray which traverses all the liquid 
strata of a pool of water, of a force which reaches through all 
the social classes. And just as the ray of sunlight undergoes a 


14 CRIMINOLOGY [$3 


different refraction, according to the difference in density of the 
medium through which it passes, so these general principles 
of conduct are subject to important variations in the different 
strata of society. In these principles (whose sum is properly 
called morality) time works change, but so gradually, that 
in order to find true contrasts we must resort to peoples who 
have preceded us, or to those below us in the scale of civiliza- 
tion. It is indisputable, however, that, at the same period and 
in a single nation, there exist principles universally obeyed. 
Still, these principles do not operate with the same force and 
the same expression in every stratum of society. “If men differ 
in anything,” says Bagehot, “they differ in the fineness and 
delicacy of their moral intuitions, however we may suppose 
those feelings to have been acquired. We need not go as far 
as savages to learn that lesson; we need only talk with the 
English poor or to our own servants, and we shall be taught 
it very completely. The lower classes in civilized countries, 
like all classes in uncivilized countries, are clearly wanting in 
the nicer part of those feelings which, taken together, we call 
the sense of morality.””! We must be careful not to mistake 
the meaning of this passage. The author remarks in the 
lower classes only the absence of the nicer part of the moral 
sense. In other words, there exists, although perhaps in rough 
outline, an all-pervading moral sense. Taken as a whole and 
viewed with respect to the majority of its members, even the 
lowest stratum of society has in point of morality something 
in common with the highest. The reason is apparent. If it 
be admitted that morality is purely a product of evolution, 
it is necessarily less refined, less perfect, in those classes of 
society which, not having been able to keep abreast of the 
others, exhibit an inferior degree of psychic development. 
Nevertheless, the same instincts exist in a rudimentary state 
throughout all classes. And for the same reason, they exist 
in such barbarous tribes as are inferior in development to the 
lowest stratum of our society, but here their existence is 
1 “Physics and Politics,” No. IV: “Nation-making.” 


§ 4] THE NATURAL CRIME 15 


merely embryonic. As a result, it is possible in every moral 
sentiment to distinguish superposed layers which tend to an 
increasing niceness. If, then, we separate the superficial 
parts from their underlying structure, we shall have in the 
latter the really substantial moral sense which is identical in 
all peoples whose psychic evolution and progress in civilization 
closely resemble our own. And so, while discarding the idea 
that morality is universal, it will nevertheless be possible for 
us to ascertain the identity of certain sentiments in a very 
wide field of human existence. It will also become clear 
to us that crime consists in acts which violate these same 
sentiments. 


§ 4. The Constituent Instincts of the Moral Sense 
—their Analysis 


Certain Sentiments to be distinguished as Non-Elementary. — 
The subject of our inquiry, then, is the elementary moral 
_ sentiments — such sentiments as are recognized and enforced 
in a human society which has emerged from infancy and by 
the preponderance of the intellectual life is differentiated 
from the brute creation. But first it is necessary to clear 
the way. There are some sentiments regarded as essential to 
individual morality, without the acts which they inhibit being 
regarded as criminal, because not anti-social, or, in other 
words, because they do not attack the primordial conditions 
of human coexistence. Although immoral and subject to 
the censure of public opinion, such acts are really harmful 
only to the authors themselves, their families or the State, 
not to society as a whole. 

The love of country is a sentiment of undoubted nobility, 
but nowadays an act contrary to the interests of the State 
does not of itself make the agent a criminal. One does not 
commit crime by the sole fact of preferring a foreign country 
to his own, or by failing to be moved to tears at the sight of 
the national emblem. Ifa man disobeys an established govern- 
ment, if he accepts employment at the hands of a foreign 


16 CRIMINOLOGY [$ 4 


nation, inconsistent with his duty to the State, he may de- 
serve to be called a bad citizen but not a bad man. Now, 
what we are dealing with is the immorality of the individual 
considered as a member of the human race, not his immorality 
as a member of a particular aggregation. It is the possibility 
of drawing this distinction — a possibility existing neither in 
Sparta nor in Rome — which demonstrates the present sepa- 
ration between national sentiment and individual morality. 

The same is equally true of the religious sentiment. 
Throughout all the countries subject to the European race, 
governments have long since ceased to impose upon the citi- 
zen the rules of a particular creed. With the ancients, the 
sentiment of religion was intimately connected with that of 
patriotism, because it was believed that upon the worship 
of the divinity depended the safety of the country. The same 
prejudice still obtains at the present day in many barbarous 
tribes. In the Middle Ages the idea that the Christians 
were the family of God, rendered them implacable enemies 
of all infidels. Blasphemy, heresy, sacrilege, witchcraft, even 
scientific teachings contradictory of dogma, were crimes of the 
most serious character. But today the precepts of religion are 
distinguished from those of social conduct, it being never- 
theless true that the Gospel, in favoring the development of 
altruism, is in part the basis of contemporary morality. 

It is recognized, moreover, that goodness and rectitude are 
not inconsistent with the absence of faith. Religion is the 
source of much happiness; he who is without it is perhaps 
to be pitied, but in no sense can he be looked upon as an 
enemy of society. 

We come now to chastity. The presence of this sentiment, 
which we admire as the paramount feminine virtue, is, none 
the less, quite unessential to the well-being of a human society. 
In those countries where the hospitality due to a guest in- 
cludes the offer of the host’s wife for the night (Greenland, 
Ceylon, Tahiti at the time of the discovery), it is wholly 
unknown. It is equally unknown where one wife belongs in 


§ 4] THE NATURAL CRIME 17 


common to a number of brothers (Todas and Tottiyars of 
India),! or where the woman engages her fidelity for five or 
six days of the week only (certain African tribes). In our own 
society, indeed, polyandry is of frequent enough existence, 
substantially the only difference being the hypocritical effort 
which is made to hide it. The progress of civilization has no 
appreciable effect in its diminution, perhaps even tends to 
its spread throughout the social classes. The figure of the 
beautiful and elegant woman of fashion who bestows her 
affections upon a lover chosen by her inclinations as well as 
upon the husband of her legal choice is by no means unknown 
in our social centers. And the fact that other women of the 
same class have a reputation for chastity may often argue 
nothing more than their better success in concealing similar 
frailties. She whom Juvenal sought in vain — the “unico 
gaudens mulier marito””»—is not always and everywhere 
found today. The assertion that polyandry has disappeared 
from our social usages is one of those conventional lies which 
are the subject of Max Nordau’s satirical analysis. 

The unmarried woman has more apparent reserve, at least 
in the Latin races; elsewhere she is allowed more liberty and 
governed with much less strictness. Still, and in spite of the 
fact that we are merciless toward her faults, must it not be 
admitted that the case of a working girl who has reached 
the age of eighteen or twenty years, without lapse from vir- 
tue, is the exception rather than the rule? And what of the 
upper classes, whose daughters are the subject of constant 
watchfulness? Instances are frequent where girls brought 
up in the best principles and in the most austere family 
surroundings have suddenly succumbed to the influence of 
passion or the arts of the seducer. 

What free-love runs counter to is oftenest the special 
situation of the individual — almost always some personal 
or family interest. In other cases of rarer occurrence it 
offends the purity of the religious sentiment. 

1 Sir John Lubbock (Lord Avebury), “The Origin of Civilization,” c. m1. 


18 CRIMINOLOGY [$ 4 


There is finally the sentiment of honor. A few words will 
here suffice, since it is apparent that of all the sentiments, 
this is the least definite. Every association, every social class, 
every family, has its own standards of honor. The same may 
be said of almost every individual. In the name of honor are 
done all manner of acts, good and evil. It is this sentiment 
which guides the dagger of the assassin, which inspires the 
soldier to throw himself upon the enemy’s works, and which 
in the duel obliges the mild and peace-loving citizen to serve 
as target for the pistol of his adversary. In the lowest classes 
of society, in the most degraded human associations, in crim- 
inal organizations, among transported convicts, there exists a 
point of honor which sometimes causes the perpetration of the 
most brutal crimes of vengeance. What is honor in one aggre- 
gation is dishonor in another. The murderer’s point of honor 
is not to be considered a thief; that of the vagabond is to 
respect the property of his benefactor; the most vicious 
criminals pride themselves upon the cleverness or boldness 
of their crimes. 

Sometimes the sentiment of honor signifies but the existence 
and predominance of a part only of the elementary moral 
instincts. Sometimes it represents nothing more than a 
residuum, the wreckage of what was once a moral sense. 
Again, by a singular inversion, it sometimes serves to render 
more conspicuous the total absence of a moral sense. Oftenest 
it consists merely of an exaggerated form of self-esteem limited, 
however, to a particular kind of activity. In fine, it is ordi- 
narily but the external and most salient expression of the 
qualities and defects of the individual character, intermingled 
with singular and irrational prejudices of class, caste, profes- 
sion, or sect. Nothing, therefore, can be more elastic and 
changeable than this sentiment of honor — a sentiment which 
Spencer classes as ego-altruistic, because other persons come 
within its scope only so far as it enables us to evoke their. 
admiration and applause. 

It is scarcely true today in our better classes that the ques- 


§ 4] THE NATURAL CRIME 19 


tion of honor turns principally upon the maintenance of a 
high standard of probity. But where it does, the sentiment 
of honor assumes an enhanced importance and falls into the 
category now to engage our attention. 

The Altruistic Sentiments. — The only sentiments which 
at the present day are of true importance for social morality 
are those termed altruistic, that is to say, such sentiments as 
have for their direct object the interest of others, although 
indirectly their exercise may redound to our own advantage. 
These altruistic sentiments are found in a very different degree 
of development in different peoples and in different classes 
of the same people. Nevertheless, they are encountered 
everywhere, except possibly in a very few savage tribes. 
They may be reduced to two distinct types: the sentiment 
of benevolence and the sentiment of justice. 

In -tracing these sentiments to their origin, it is true, we 
may become convinced that they are merely a development 
or after-growth of egoistic sentiments. The instinct of in- 
dividual conservation expands first to include the family 
and then extends to the tribe. From it there becomes slowly 
detached a feeling of sympathy for our fellow-beings. The 
circle of fellow-beings at first embraces those of the same tribe, 
then those of the same country and tongue, next all men of 
the same race and color, and in the end, comprises all man- 
kind irrespective of race. 

The Sentiment of Benevolence. —'Thus the sentiment of 
love or benevolence for our fellows begins as an egoistic 
sentiment under the form of love for our own children, who 
are almost a part of ourselves. It then extends to the other 
members of our family, but becomes altruistic only when 
no longer determined by ties of blood. At this period, it is 
determined by the physical or moral resemblance of persons 
belonging to the same caste, the same nation, or the same 
race, and expressing themselves in an almost identical fash- 
ion, — because we are unable to entertain sympathy for per- 
sons who totally differ from us and with whose feelings we 


20 CRIMINOLOGY [$ 4 


are entirely unacquainted. For this reason, as Darwin has 
very clearly pointed out, the difference of race, and therefore 
of appearance and customs, is one of the principal obstacles 
to the universality of the sentiment of benevolence.! Only by 
slow degrees is man able to reach the point at which he looks 
upon the men of all countries and races as his fellow creatures. 
Lastly, sympathy for animals is a moral acquisition of tardy 
growth. Even at the present day it prevails only among 
men of the highest moral refinement, as is abundantly testified 
by the existence of the chase and the slaughter-house. 

But in order to distinguish the different degrees of this 
instinct of benevolence and to discover how much of it is 
really an essential of morality and to a certain extent univer- 
sal, we must proceed somewhat further with our analysis. 

We find, first of all, a small number of persons whose sole 
interest is the well-being of others, and whose entire lives 
are devoted to the relief of poverty and suffering, without 
thought of recompense, — who act from no promptings of 
ambition, but, on the contrary, seek to keep their good 
deeds from being known, — persons who deprive themselves 
not only of luxuries but even of necessities, for the good of 
others. Such people are philanthropists in the true accepta- 
tion of the term. Next, we have a larger number of persons 
who do not make service to others the principal object of 
their existence, but who, nevertheless, eagerly avail them- 
selves of the opportunity to render such service, when occa- 
sion presents. They do not seek such occasions, but they do 
not shun them. The chance to do something for others affords 
them pleasure. This class of persons may be designated as the 
beneficent or generous. The mass, however, is composed of 
persons who neither make any effort nor submit to any sacri- 
fice to increase the happiness or lessen the misfortunes of 
others, but who yet do not willingly inflict suffering upon their 
neighbors. In such persons exists the ability to repress 
every voluntary act productive of pain to their fellows. 

1 Darwin, “The Descent of Man,” Part I, c. rv. 


‘ 


§ 4] THE NATURAL CRIME 21 


This resistance to the impulses which, unchecked, would result 
in the infliction of suffering on others, arises from the sentiment 
of pity or humanity, that is to say, repugnance to cruelty. 
In origin this last-mentioned sentiment is not absolutely 
altruistic. Just as the pleasure that we experience in repre- 
senting to ourselves the pleasure of others gives rise to the 
generous action, so, as Herbert Spencer has said, pity is de- 
rived from the personal pain felt in representing to ourselves 
the pain of others, which we thus feel as if it were our own. 
It originates, therefore, in egoism, but its egoism has become 
transformed into an unreasoning instinct of which our fellows 
are the direct object. It is in this sense, then, that we may 
term altruistic a sentiment which grows out of sympathy for 
suffering, and hence from the fear of experiencing a painful 
emotion at the sight of suffering of which we have been the 
cause. 

“Sympathy with pain, produces in conduct modifications 
of several kinds. In the first place, it puts a check on the 
intentional infliction of pain. Various degrees of this effect 
are observable. Supposing no animosity is felt, the hurting 
another by accident arouses a genuine feeling of regret in all 
adults save the very brutal: representation of the physical 
pain produced, is sufficiently vivid in nearly all civilized 
persons to make them avoid producing it. Where there exists 
a higher degree of representative power, there is a reluctance 
to inflict emotional pain. The disagreeable state of mind that 
would be excited in another by a sharp word or harsh act, 
is imagined with such clearness that the imagination serves 
partially or wholly as a deterrent. . . . In another class of 
cases, pity modifies conduct by prompting efforts to assuage 
pain that is already being borne — pain arising from disease, 
or from accident, or from the cruelty of enemies, or even 
from the anger of the pitying person himself... . If his 
imagination is vivid, and if he also sees that the suffering can 
be diminished by his aid, then he cannot escape from his 
disagreeable consciousness by going away; since the repre- 


22 CRIMINOLOGY [§ 4 


sented pain continues with him, impelling him to return and 
assist.” 4 

It follows, therefore, that the sentiment of benevolence 
exhibits many degrees of development: the pity which re- 
strains us from causing physical suffering, the pity which 
hinders us from causing moral suffering, the pity which leads 
us to help our neighbor whom we see in distress, and those 
higher types of the same sentiment, namely, beneficence, 
generosity, and philanthropy, by which pleasure is derived 
from aiding others, not only with the view of relieving their 
present sufferings, but also with that of rendering their future 
less burdensome. The first two manifestations are negative, 
that is to say, they consist in the abstention from certain acts; 
the others, on the contrary, are positive, implying not omis- 
sions but acts. And just here, we see the fallacy of the theory 
which supposes an act or omission to be criminal whenever 
it assumes the two-fold aspect of immorality and injury to 
the community. As a matter of fact, this double aspect 
distinctly appears in any action characterized by the want of 
that positive kind of pity which impels us to lend a hand to 
others. The refusal to give alms to a deserving subject of 
charity or to do what one can to assist the poor and needy, 
may work an injury to the community, at the same time argu- 
ing a lack of proper development of the altruistic sentiments. 
Still, ungenerous as such conduct may be, public opinion 
nowhere regards it as crime. To associate an act with the 
idea of crime it is not enough that it be immoral, not enough 
that it wounds the altruistic sentiments as they exist in their 
superior stages of development, in that refined degree which 
characterizes a few exceptional persons; the act must be such 
as wounds these sentiments as they exist in the lowest phase 
of this development, in what we may call their rudimentary 
stage. This explains why we find the sentiment of pity almost 
universal among the higher races of mankind and those who 


1 Herbert Spencer, “Principles of Psychology,” II, Part IX: ‘‘Corollaries,” 
c. VIII. 


§ 4] THE NATURAL CRIME 23 


are on the road to civilization, but only in its negative forms. 
As a result, the abnormal fact to which we attach the idea of 
crime necessarily involves the violation of the sentiment which 
prevents us from being the voluntary cause of suffering. 

The Sentiment of Pity. — It is then only the first degree of 
pity which has become nearly universal — namely, repug- 
nance to acts which produce physical pain. As to those which 
cause moral suffering, a distinction is required. There are 
some acts whose effect depends chiefly upon the sensibility 
of the person aimed at. The identical injury which produces 
suffering in a cultured man, may leave a boor almost un- 
touched. In this case the general representative power is 
insufficient to feel the pain. Hence it is that harsh words 
and vulgar epithets are of such common occurrence among the 
lower classes, taking the place which in the higher ranks of 
society is occupied by the biting jest and the polished sarcasm. 
In neither case do we consider how much suffering is inflicted 
upon the person whose refinement is superior to that of his 
environment: no wound is sustained by the common sense of 
morality. 

Nor is it necessary to consider those sorts of moral suffering 
which may eventuate in disease or death. The effect varies 
too much with different natures, the intention of the wounding 
person is too uncertain a matter, for the moral sense to revolt. 
If it does revolt, it can do no more than deplore the fact, since 
it has no means of definitely attributing the result to any 
given act. For this reason, the moral homicide which some 
authors speak of, has no practical interest for criminology. 
Being insusceptible of exact determination, it can have no 
place in the category of crime. 

But a very different situation is presented when the moral 
suffering is complicated with a physical element, as in the 
case of forcible restraint of the person or an offense against 
chastity committed by violence. A difference also exists 
when to the moral suffering there is added an injury to the 
social position of the person attacked. Such is the case, for 


24 CRIMINOLOGY [$4 


example, in defamation (“diffamation”’), false accusation 
(“calomnie”’),1 enticement to prostitution, and seduction 
before the age of consent. Acts of this description are calcu- 
lated to produce irreparable injury: they may result in reduc- 
ing the victim to the uttermost degradation. By the pre- 
vision of such consequences the universal sentiment becomes 
aroused and stamps the authors of such acts as criminal. 
What has been said in the present connection, shows us 


1 [The Continental law of criminal defamation differs widely from our own. 
Apart from the defamation of public officers, three principal categories are 
recognized in the French and Italian systems: 

(a) False accusation (‘“dénonciation calomnieuse;”’ “ calunnia”’). 

“Dénonciation calomnieuse” (Art. 373 of the French Code): malicious 
false accusation of a punishable fact made in writing and to the authorities. 
(“Calomnie,” formerly recognized in the French Code, was a distinct 
offense. It existed when one imputed to another in a specified public man- 
ner [otherwise than by the written accusation essential in “‘ dénonciation 
calomnieuse”] facts exposing him to prosecution or to public hatred or 
contempt. The provision with reference to it [Art. 367] was, however, re- 
pealed in 1819, and the wrongful act now constitutes either “diffamation” 
or “injure” according to the facts of the case; see Garraud, “Traité de 
droit pénal frangais,” V, p. 325.) 

“Calunnia” (Art. 212, Italian Code): false accusation of a punishable 
offense made to the authorities against a person whom the wrong-doer 
knows to be innocent; or the fabrication of evidence tending to inculpate 
an innocent person. 

(b) Defamation (“ diffamation;” “‘ diffamazione ”’). 

“‘Diffamation” (Law of 29 July, 1881, Art. 29, § 1) is the “allegation or 
imputation of a fact attacking the honor or good standing (‘considération’) 
of the person to whom, or body to which the fact is imputed,” made in a 
specified public manner. Truth is no defense (Garraud, loc. cit.). 

“Diffamazione” (Art. 393, Italian Code) exists when the wrong-doer 
*‘in communication with more than one person, separately or together, attrib- 
utes to another a determinate fact such as to expose him to contempt or to 
public hatred or to offend his honor or reputation.” Truth is not a defense 
except under special circumstances (Art. 394). 

(c) Insulting language (“injure;”’ “ ingiuria”’). 

“Tnjure” (Law of 29 July, 1881, Art. 29, § 2). “Every expression out- 
raging the feelings, every term of contempt (‘mépris’) or invective, not 
imputing a fact, is an ‘injure.’”’ If public, the offense is a “délit,” otherwise 
it is a “contravention” (Garraud, loc. cit.; see post, p. 59, note 1). 

“Ingiuria”’ (Art. 395, Italian Code) consists in words “offending, in any 
manner whatsoever, the honor, the reputation, or the dignity (“decoro’) of 
another.” Unless the offense is committed in the presence of the injured 
person, or by means of a writing addressed to him, there must be, as in 
“ diffamazione,” communication to more than one person, separately or 
together. — TRANSL.] 


§ 4] THE NATURAL CRIME 25 


clearly that there has hitherto existed an altruistic sentiment 
which in therudimentary stage of its development is all-pervad- 
ing, at least throughout the higher races of mankind and such 
peoples as have emerged from savagery — the sentiment of 
benevolence toward our fellows, or pity, at least in its negative 
form. In the case of races which have attained a certain degree 
of development, this would appear, therefore, to be a fixed 
and immutable sentiment. And except for certain tribes of 
a retarded development which, as compared with the rest of 
humanity, represent but an insignificant minority, it may 
properly be said to be universal. 

It has been suggested that this result is in conflict with the 
theory of evolution. “If morality is the product of evolution,” 
says one writer, “why should its variations be other than 
uniform? And if, up to a given point of time, it has undergone 
uniform variation, why should the procession of changes be 
arrested and not continue ‘ad infinitum’?”! The answer is 
furnished by the following words of Spencer: “To infer that 
no settled sentiments can ever be generated by the process 
described, is to assume that there are no settled conditions to 
social welfare. Clearly if the temporary forms of conduct 
needful, initiate temporary ideas of right and wrong with 
responsive excitements of the sentiments, it is to be inferred 
that the permanent forms of conduct needful, will initiate per- 
manent ideas of right and wrong with responsive excitements 
of the sentiments; and hence to question the genesis of these 
sentiments is to doubt the existence of these forms. That 
there are such permanent forms of conduct, no one can deny 
who compares the law-books of all races which have outgrown 
the purely-predatory life. This variability of sentiment is but 
the concomitant of the transition from the aboriginal type of 
society fitted for destructive activities, to the civilized type 
of society fitted for peaceful activities.”’* Although the great 


1 De Aramburu, “La nueva ciencia penal,” p. 101 (Madrid, 1887). 
2 Herbert Spencer, “Principles of Psychology,” II, Part [X: ‘“Corollaries,”’ 
c. VIII. 


26 CRIMINOLOGY [$4 


contemporary philosopher was not here dealing with the 
theory of crime, the concluding words of this passage serve 
completely to refute the objection in question. 

But, it may be urged, the conclusion that benevolence is a 
sentiment or instinct of the human race is contradicted by 
many facts of history: piracy, for example; the pillage of 
wrecks, traces of which have survived in Europe to a com- 
paratively recent date; the sale of children, tolerated in 
China; the institution of human slavery, not long since 
existing in America; the barbarous forms of punishment 
practised in the Middle Ages; and the numberless cruelties 
inflicted by Christians upon the heretics and the Moors, 
by the Spaniards upon the natives of the New World. 
How, moreover, are we to explain the attitude of mind which 
could enable the old chronicler to recount the cannibal feast 
of Richard Coeur de Lion,! not only without a shudder, but 
without in the least abating his enthusiasm for the chivalric 
character of the hero? 

This contradiction, however, is only apparent. The ex- 
planation is not far to seek. The objects of the sentiment of 
pity have already been indicated: we have shown that its 
scope is restricted to those who are our fellow-beings. As 
already seen, man has begun by regarding as his fellows only 
the members of his own tribe; he has next included in this 
category all men of the same country, later all those united 
by one faith, one language, or a common origin, — and not 
before our own day perhaps, all men without respect to race 
or religion. 

Pity existed from the beginning, but was far from being 
cosmopolitan in its scope. It still falls far short of that, what- 
ever may be said to the contrary. The proof is furnished by 
the cruelties inflicted by European armies not many years 


1 “His people kill a young Saracen, fresh and tender; they cook him and 
salt him; the king eats of the dish and finds it very good. . . . He causes 
thirty of the most noble Saracens to be beheaded, orders his cook to boil the 
heads and serve one to each ambassador, and eats his with good relish” 
(Taine, “De la littérature anglaise,” I, c. m, § 7). 


§ 4] THE NATURAL CRIME 27 


ago upon the Tonkinese and Chinese, in total disregard of the 
humanitarian laws of modern warfare.! Here we may see 
why, in a less enlightened age, the Spaniards did not look upon 
the Indian races as men. We may see also why, some cen- 
turies before, the Moors, the Saracens, non-Christians of 
every description, the Albigenses and all other manner of 
heretics, deserved pity no more than mad dogs. They were not 
the fellow-beings of the Catholics; they differed from the 
latter as much as the host of Satan from that of the Archangel 
Michael; they were the enemies of Christ, and must be 
destroyed, root and brarich. The cause was not any deficiency 
in the sentiment of pity; it lay in the failure to see the resem- 
blance between men without which sympathy, the origin of 
pity, could not exist. 

It required the 1800s to evoke from Victor Hugo that 
triumphant but exaggerated cry of cosmopolitanism: “The 
hero is naught but a variety of murderer.” To appreciate 
the changes which evolution may effect in a moral sentiment, 
it is only necessary to ask if we could imagine any monarch 
of the present day ordering the engraving of an inscription 
like that of Assur-nazir-pal, in which it is related how the 
King, upon taking a hostile city, caused a number of the prin- 
cipal men to be flayed, others to be buried alive, and still 
others to be crucified and impaled.? In the expansion of this 
sentiment of pity the progress has been immense. Restricted 
in prehistoric times to members of the family, it now recog- 
nizes no other limits than those of mankind. The tendency, 
indeed, is even to transcend these limits by the cultivation of 
zodphily, that is to say, pity for the lower animals. 

And yet this sentiment whose circle of objects has thus been 
ever widening, has always existed, since the earliest formation 
of the savage group, since the moment when man first saw 
his fellows around him. The contradiction suggested above 
is therefore non-existent. 

1 On this subject, see an admirable passage in Tarde’s “Criminalité com- 


parée,” pp. 188, 189 (Paris, Felix Alcan). 
2 Maspero, “ Histoire ancienne des peuples de Il’ Orient,”’ c. rx. 


28 CRIMINOLOGY [$4 


There are, however, some facts which do not admit of the 
same explanation, viz., religious parricide, human sacrifice, 
the sale of children, and authorized infanticide. Here we 
must adopt a different point of view. . 

Do we not all number among our acquaintances persons 
whose profession is surgery and who, in the performance of 
operations, are in the habit of inflicting pain, heedless of the 
outcries and unaffected by the anguished shuddering of their 
patients? Still these persons are not wicked men. For the 
performance of these very operations they receive pecuniary 
compensation, praise, and gratitude. Clearly, here is no proof 
that pity is not a moral sentiment, not a fundamental senti- 
ment of human nature. The reason is simply this, that since 
the purpose of the painful operation is not to work harm, 
but, on the contrary, to benefit the health of the patient, it 
would be an absurd and irrational sort of pity that would stay 
the surgeon’s hand. For the true pity, the present and transi- 
tory suffering of the patient is outshadowed by the represen- 
tation of his future suffering or of his certain death in the 
absence of the operation. 

From this point of view, then, are to be judged the atrocious 
customs existing among primitive peoples and still in some 
measure encountered in savage tribes, which have given rise 
to the facts above referred to. Sometimes the determining 
motive was the welfare of the aggregation: this was true of 
human sacrifices. Sometimes it was the victim’s own good, 
as in the case of aged or infirm parents publicly slain by their 
children. Superstition repressed every tendency to rebel 
at such practices; individual repugnance was obliged to yield 
before the demands of social, religious, or filial duty. Similar 
reasons account for the existence of funeral sacrifices in 
Dahomey today, as in Peru in the times of the Incas. Like 
reasons prompted Agamemnon and Jephthah to sacrifice 
their daughters. Patriotic or religious prejudices, usages 
explicable only by the necessity of selection or the prevention 
of too great an increase in the population have given rise to 


§ 4] THE NATURAL CRIME 29 


the toleration of infanticide in China, Australia, Paraguay, and 
South Africa, as well as the practice of abortion in many 
Polynesian tribes. The operation of the same causes pro- 
duced the law of Lycurgus, under which all weak and de- 
formed children were exposed. Here, then, the question of 
individual cruelty is not involved: the question is one of so- 
cial institutions against which the individual is powerless. 
Tt is the element of harmfulness which makes cruelty obnoxi- 
ous to altruism. Where such practices prevailed it was the 
not doing of these acts of supposedly necessary cruelty that 
would have been looked upon as harmful. 

Among the inhuman practices authorized by the laws of the 
peoples of whom we have spoken, there remain to be ac- 
counted for: cannibalism; the right of chiefs and warriors 
to kill from pure caprice, or from a desire to exhibit their 
dexterity or to test their weapons; and lastly, such cruel 
acts as are not due to religious or patriotic prejudices or to 
institutions having an economic or social end and can only 
be explained by the total absence of the sentiment of pity. 
Customs of this sort are in fact found among certain barbarous 
peoples, or at least existed among them at the time of their 
discovery by civilized man. Such are or were the Fijians, 
the Maoris of New Zealand, the Australian aborigines, and 
some tribes of the interior of Africa. But these are exceptions 
which prove the rule. They are social anomalies which, 
in relation to the human species, correspond to individual 
anomalies in relation to a race or nation. 

Sufficient has been said on this subject to warrant the 
positive assertion that there exists a rudimentary sentiment 
of benevolence or pity possessed by the whole species (with 
probably some exceptions) in a negative form, that is to say, 
a sentiment which prompts abstention from cruelty useless 
to a community, and further, that public opinion has always 
treated violations of this sentiment as crimes. It is apparent, 
moreover, that today the scope of this sentiment has become 
greatly enlarged by the progress of human sympathy and the 


30 CRIMINOLOGY [$ 4 


gradual disappearance of religious and political prejudices 
and superstitious beliefs. 

The Sentiment of Justice. — We pass now to the most signifi- 
cant form of altruism, to the sentiment which stands out most 
prominently among the ego-altruistic instincts — the senti- 
ment of justice. “This sentiment,” Spencer tells us, “evi- 
dently does not consist of representations of simple pleasures 
or pains experienced by others; but it consists of represen- 
tations of those emotions which others feel, when actually 
or prospectively allowed or forbidden the activities by which 
pleasures are to be gained or pains escaped. The sentiment of 
justice is thus constituted by representation of a feeling 
that is itself highly re-representative. . . . The limit toward 
which this highest altruistic sentiment advances, is tolerably 
clear. . . . The advance is towards a state in which, while 
each citizen will tolerate no other restriction on his freedom, 
he will tolerate that restriction on it which the like claims 
of fellow-citizens involve. Nay more — he will not simply 
tolerate this restriction, but will spontaneously recognize 
it and assert it — will be sympathetically anxious for each 
other citizen’s due sphere of action as for his own; and 
will defend it against invasion while he refrains from invading 
it himself.” ! For the sentiment of justice in this refined 
degree, the term “delicacy” (“délicatesse’’) has been adopted. 
It will be readily understood that a sentiment so complex 
in character can be possessed in full measure by only a select 
few. Although the idea of justice is well developed in children 
and in the lower classes, it is seldom that they act in conform- 
ity to this idea, when it would interfere with their personal 
interest. The child and the savage are perfectly able to dis- 
tinguish what belongs to them from what belongs to another, 
yet they constantly endeavor to seize whatever is placed 
within their reach. This proves that it is the sentiment and 
not the idea of justice which they lack. So far as the adult 


1 Herbert Spencer, “Principles of Psychology,” II, Part IX: “Corollaries,” 
c. VII. 


§ 4] THE NATURAL CRIME 31 


persons of a civilized race are concerned, they possess generally, 
as a result of heredity and tradition, a certain instinct which 
restrains them from taking by fraud or violence that which 
does not belong to them. In this we have an altruistic senti- 
ment corresponding to the egoistic sentiment of property, 
which an Italian writer has accurately described as “a sec- 
ondary form of the sentiment of individual conservation.” ! 

The Sentiment of Probity. —'The only word which we find 
to designate this last-mentioned altruistic sentiment is 
“probity ’’ — a term expressive of respect for all that which 
belongs to others. 

It is evident that the average moral sense of a society 
cannot comprise all the gradations of the sentiment of justice. 
An exquisite niceness in this sentiment would, for example, 
prevent us from accepting mere praise which we know is not 
our due. But feelings of this sort belong only to a select 
minority. Before the moral sense of the community is 
violated, it is necessary that some nearly universal sentiment 
be the subject of attack. And the only sentiment of this de- 
scription to be met with is that elementary probity which, 
as has been said, consists in respecting the property of others.? 

From this point of view, mere pretended insolvency (“simple 
insolvabilité simulée”’) would be a crime. In reality, it wounds 
the moral sense quite as much as any species of fraud now 
recognized as criminal. It is not improbable that we shall 
arrive at this point. Perhaps we shall go even farther: the 
time may come when we shall consider as criminal all those 
tricks and sharp practices (“tromperies auxquels on donne 


1 Sergi, “Elementi di psicologia,”’ pp. 590, 591 (Messina, 1879). 

2 Frassati questions the definite possession of this sentiment. He suggests 
that, owing to the influences of socialism, respect for the property of others 
is at a low ebb, and is liable entirely to disappear in the event of a reorganiza- 
tion of society on a collectivist basis. But if this change should come about, 
the honest man will respect the collective property. The ownership of the 
principal mass of property by the community will not effect the disap- 
pearance of probity or improbity. The only difference will be that they 
will then relate to the community property instead of to the property of 
individuals. 


32 CRIMINOLOGY [$ 4 


le nom de simulations’) occurring in the conduct of civil 
cases, by which one party obtains an undue advantage at the 
expense of the other. But the effort to bring this about 
might not be unattended with danger. In the first place, 
it is a matter of great difficulty to expose the bad faith which 
may lurk in the legal subleties of a civil case. Then again, 
if real property rights are involved, the mere presence of the 
disputed property has a reassuring effect. Frauds of this 
kind, therefore, do not seriously alarm society and conse- 
quently are not classed among the harmful actions. 

Finally, it is to be remembered that probity is a sentiment 
not nearly so deep-rooted as sympathy, much more detached 
than this latter from our organism, much less instinctive, 
and much more variable according to our respective methods 
of reasoning and individual ideas. It is derived, in a much 
less degree than pity, from natural heredity, in a much 
greater degree than pity, from education and example. 
Hence, it is a matter of the utmost difficulty to trace any 
line of demarcation between common probity and the superior 
sort of probity, that delicacy of feeling which constitutes 
the ideal sentiment of justice outlined above. 

When one considers to what extent society tolerates the 
use of false marks and labels. in manufactured goods, the 
employment of false statements and representations in the 
sale of horses, objects of art, and the like, and the various other 
sources of improper gain from which a very numerous class 
derives its principal income, he is sometimes tempted to doubt 
whether this sentiment of probity has any existence at all 
in the majority of men. Dissimulation, breach of trust, 
and disregard for the finer feelings of honesty are so common 
as to render a reciprocal tolerance indispensable. As a result, 
the stigma of improbity, by an arbitrary limitation, attaches 
only to the grossest and most apparent forms of attack on 
property, whereas it should apply to all manner of attacks 
upon property, and this whether the property be tangible or 
intangible. For example, the laws provide severe punishment 


§ 5] THE NATURAL CRIME 33 


in the case of but one species of counterfeiting, namely, 
that of money, yet the moral sense is not less offended by the 
spurious imitation of some manufactured product, even al- 
though, being sold at a cheaper price than the original, its 
effect might be to benefit every one but the manufacturer of 
the genuine article. Undoubtedly the presence of an infinitely 
greater social danger in the former case is not without its 
influence, but nevertheless public opinion recognizes the same 
character of improbity in both these species of counterfeiting, 
although one is punished by penal servitude and the other 
merely by a fine. On the other hand, in spite of any amount 
of reasoning on the subject, we can never be induced to feel 
the same repugnance for the smuggler or for one who accepts 
the benefits of his offense, as we entertain for the thief or the 
receiver of stolen goods. The difference is simply this, that 
in the first case the offender merely evades the payment of a 
tax — refuses to give his own money to the State. Plainly, 
the refusal to contribute to another’s enrichment is quite 
a different thing from stealing what is already his. If there 
chanced to come to the hands of even the most honest of men, 
a box of Havanas which had escaped the payment of customs 
duty, it would be very singular if this fact interfered with 
his enjoyment of the contents, however much he might be 
inclined to condemn the practice of smuggling. 


§ 5. Rationale of the Natural Crime 


Injury to Pity or Probity the Essential Element. — From 
what has been said in § 4, we may conclude that the 
element of immorality requisite before a harmful act can be 
regarded as criminal by public opinion, is the injury to so 
much of the moral sense as is represented by one or the other 
of the elementary altruistic sentiments of pity and probity. 
Moreover, the injury must wound these sentiments not in 
their superior and finer degrees, but in the average measure 
in which they are possessed by a community —a measure 
which is indispensable for the adaptation of the individual 


34 CRIMINOLOGY [$5 


to society. Given such a violation of either of these senti- 
ments, and we have what may properly be called natural 
crime. The foregoing, I concede, is not a complete definition, 
but it furnishes a determinant which I believe to be of the 
highest importance. I have sought to show the futility of 
saying in the usual fashion that crime is an act at once im- 
moral and harmful. It is something more: it is a determinate 
species of immorality. Hundreds of deeds might be mentioned 
which are both harmful and immoral and still not considered 
as crimes. And this is so, because the element of immorality 
which they contain is neither cruelty nor improbity. If, for 
example, immorality in general be spoken of, we are obliged 
to recognize that this element in some degree exists in every 
voluntary disobedience to law. But it is nevertheless true 
that there is a host of acts which are misdemeanors and even 
crimes in the eye of the law and yet do not tend to lower 
their authors in the estimation of their friends. 

Beyond question, every disobedience to law should be at- 
tended with a penal sanction, whether such disobedience 
does or does not wound the altruistic sentiments. What 
then is the practical object of your distinction? — some one 
may inquire. This we shall presently explain, but first, to 
complete our analysis, we must show why certain violations 
of a different order of sentiments have been excluded from our 
category of criminality. 

Distinctions : Acts wounding Modesty and Chastity. — The 
result of our discussion of the subject of modesty suffi- 
ciently justifies the exclusion of all acts which wound this 
sentiment alone. Offenses against chastity are rendered 
criminal by the interference with individual liberty — the 
violation of the sentiment of benevolence or pity, — and this 
even if the offense is accomplished by seduction unattended 
with force, because of the moral suffering, shame, and other 
harmful consequences suffered by the victim. But when the 
woman has submitted of her own free will and no element of 
seduction is involved, the unchaste act of itself is a matter of 


§ 5] THE NATURAL CRIME 35 


indifference. The same reason equally prevents us from class- 
ing as crimes certain acts of sexual perversion, although the 
laws of some countries still endeavor to repress such offenses 
by means of physical punishments (“peines afflictives” !). 
Civilized society does insist on the observance of public de- 
corum: it will not tolerate complete nudity or the commerce 
of the sexes in public; — spectacles of this sort would excite 
mirth or disgust, or, especially among parents, the keenest 
sense of indignation. But even the last would hardly demand 
the death of the offenders; they would protest, not against 
crime, but against indecency. Manifestly, in these cases 
the only thing that needs to be changed is a modality, namely, 
the place, and there is nothing to complain of. For this reason, 
such facts have been, according to the period, visited with the 
lash, minor restrictions of liberty, or fines, just as the case 
of drunkenness, but no more than in the last-mentioned 
case, has it ever been thought proper to invoke the pun- 
ishments which are set apart for crimes. The public con- 
science is unable to discover crime in that which becomes a 
breach of decorum (“inconvenance’’) only by the single ex- 
ternal circumstance of publicity. The seriousness of the 
breach of decorum, it may be added, depends upon how 
public the place in question is. This explains why public 
opinion in these instances can see only police offenses (“con- 
traventions de police’), however they may be classed by 
the positive law. 

Acts wounding Sentiments of Family. — Let us turn now 
to another class of sentiments which at one time possessed 
great importance, viz., the sentiments of family. We know 
that the family was the nucleus of the tribe and hence of the 
nation, and that the moral sense first appeared under the form 
of love for one’s children, — this being a sentiment not yet 
altruistic, but purely ego-altruistic. The progress of altruism 
has greatly diminished the importance of the family group, 
morality having first passed beyond the limits of the family, 

1 [See post, p. 59, note 1. — TRANSL.] 


36 CRIMINOLOGY [$5 


to transcend in later stages those of the tribe, the caste, and 
the people, and, ultimately, to recognize no other boundaries 
than those of mankind. 

But in spite of this constant progression, the family has 
continued to exist, with its natural rules of obedience, fidelity, 
and mutual assistance on the part of its members. What then 
of the violation of such sentiments? Does it always constitute 
a natural crime? By no means, unless there exists at the same 
time a violation of one or both of the elementary altruistic 
sentiments discussed above. Suppose that a son maltreats 
his parents, a mother abandons her offspring, what sentiment 
is really wounded here? Is it the sentiment of family — of 
the family regarded as an aggregation, an organism — or 
is it not rather the sentiment of pity, — which, it may be 
noted, is generally more vivid when its objects are related to 
us by blood? 

It is this same universality of pity within the family which 
renders criminal certain acts in relation to our parents and 
children, which if committed against outsiders would not be 
given a criminal character. On the other hand, the idea of the 
family community — a traditional idea which persists in spite 
of the laws — denies a criminal character to certain attacks 
upon property within the family circle, as, for example, larceny 
between father and son, husband and wife, or brother and 
sister. And this is not because the sentiment of probity is 
overborne by the sentiment of family, but simply because the 
idea of a common ownership diminishes the degree of improbity 
or renders its existence doubtful. 

Disobedience to the paternal authority has long since 
ceased to be classed as a crime, but adultery continues to 
be so regarded. That adultery is harmful to the family order, 
and from this point of view is immoral, cannot admit of the 
slightest doubt. Nevertheless, save in some exceptional cases, 
it does not directly wound the elementary altruistic senti- 
ments. It is merely the breach of a duty, the violation of a 
contract, and, as in the case of other contractual relations, 


§ 5] THE NATURAL CRIME 37 


its legal consequences should be limited to the giving rise to a 
right to rescind on the part of the aggrieved party. We have 
not yet come to this, but history shows us a progressive 
diminution in the punishment of adultery. The Israelitish 
stoning, the Teutonic fustigation, the pillory and other forms 
of corporal punishment which obtained in the Middle Ages, 
have all given way to the few months of correctional imprison- 
ment! by which the offense is punished at the present day. 
In brief, that which is nothing more than the violation of a 
right, and wounds neither the sentiment of pity nor that of 
probity cannot be deemed a crime by public opinion. On the 
other hand, the criminal character of bigamy, for example, 
where the second spouse is unaware of the prior marriage 
(“bigamie frauduleuse’’), is easily recognized. The same is 
true of the false pretenses (“fausses qualités’’) under which 
an adventurer insinuates himself into a respectable family 
and effects a marriage with one of its members. Although 
this last-mentioned fact has yet no place in the code, it cannot 
be gainsaid that a marriage procured by fraud excites public 
indignation to a much greater degree than the fault of adultery. 

In some measure adultery is the political crime of the family. 
To it may be applied many of the considerations now to be 
mentioned in relation to political crimes in general. 

Political Crimes. — The subject of political crimes presents 
difficulties of a most serious character. How are we to con- 
tend that conspiracy or rebellion against a lawful govern- 
ment is not atrue crime ? Can there be anything more dan- 
gerous to the particular society? Does it not attack the public 
peace in the directest manner possible? And yet, how else 
can we explain the sympathy that political offenders often 
inspire in their bitterest enemies, as opposed to the repug- 
nance which every honest man feels for thieves, swindlers, 
forgers, and men of that stripe? There is here a clear-cut 
distinction. One may, to be sure, speak of political crime, 
but the word “crime,” standing alone, has nothing to do 


1 [As to correctional imprisonment, see post, p. 59, note 1. — TRANSL.] 


38 CRIMINOLOGY [$5 


with the present class of acts. This difference is one which 
the public conscience never fails to recognize. As an ex- 
ample may be cited its expression by that most philosophic 
of novelists, Balzac, in “The Magic Skin.” The speakers 
are young men of the literary Bohemia: 

“**Oh, well,’ resumes the first, ‘there is still left tous . . .’ 

“ “What ?’ inquires another. 

Crime...’ 

“There ’s a word which has all the height of the gallows 
and all the depth of the Seine,’ replies Raphael. 

***Oh! You don’t understand me. I mean political crime.’” 

In reality, egoism is often alien to political crimes. They 
are explained, not by the default of moral sense, but rather by 
a revolutionary ingenuousness which feels capable of making 
over the world. 

Still, there are certain crimes commonly called political 
which, nevertheless, properly come under our definition. 
Such, for example, are attacks upon the life of the head of the 
State or other public officers, the use of bombs and dynamite 
to further revolutionary propaganda, and similar acts of 
violence. In these cases it is of little moment what the politi- 
cal object may be, if the sentiment of humanity is wounded. 
Has there been killing or an attempt to kill, not in the course 
of war or in the exercise of lawful self-defense? If so, the 
author, by that fact alone, is a criminal. His degree of crim- 
inality may be greater or less, according to the intent and 
the surrounding circumstances — a matter to which we shall 
later refer. But if crime arises from the single fact of a serious 
violation of pity, there must be at least an attempt to commit 
it. This is so, because we cannot admit that any crime ex- 
ists before some step has been taken in its accomplishment, 
even if the design has been fully formed in the author’s mind. 
It may be that public policy, in cases of this character, will 
treat as a punishable attempt that which is not an attempt in 
the ordinary sense; here we have a true political crime. The 
cases to which we have reference, however, are those in which 


cee 


§ 5] : THE NATURAL CRIME 39 


there has been murder, incendiarism, or dynamiting, actual 
or attempted. In such cases the crime exists independently 
of the passion which has provoked it. It exists because of the 
wilful intent to destroy human lives. Only when the act of 
the fanatic or revolutionary exhibits no such cruelty or 
carelessness of human life can we distinguish the true political 
crime, and say that it inherently differs from the natural 
crime. But the act which is normally a political crime may be- 
come a natural crime when a society suddenly returns to a 
condition in which the collective existence is threatened. 
War, a state resembling that of the predatory life, relegates 
the sentiments developed by pacific activity to a subordinate 
station. Let independence once become the principal concern 
of a people, and the attempt of a citizen to betray his country 
to the enemy assumes the worst aspects of immorality. 
Under such circumstances every citizen must be considered 
as a soldier; martial law reigns supreme; the laws of peace 
have disappeared. Treason, desertion, espionage are then 
true crimes, because tending to national destruction. But at 
the present day the state of war is a crisis of short duration. 
As pacific activity succeeds to the predatory activity, the 
morality of the state of peace succeeds to that of war, and the 
offense which was esteemed a crime only in relation to that 
state of war, becomes a political crime or no crime at all; 
at all events, it ceases to be numbered among the natural 
crimes. Thus desertion becomes no more than voluntary 
expatriation; conspiracy and revolt no longer threaten the 
national life, but only the form of government. As for espio- 
nage, it is no more than the revealing of State secrets, which, 
like many other acts of a similar character, may still be cul- 
pable if it involves the selling for money or other object a 
secret which one is in honor bound to keep. In this case the 
element of improbity is present, the moral sense is in conse- 
quence wounded, and the act continues to be a natural crime. 

Non-Political Local Offenses menacing Public Peace. —'There 
are other offenses which are not political, but which 


40 CRIMINOLOGY [$6 


from a local point of view are a menace to public peace. 
Such, for example, are attempts to subvert a particular 
governmental institution, disobedience to the constituted 
authorities, and the refusal of a citizen to perform a public 
duty legally incumbent upon him. So far as these are con- 
cerned, we need only repeat that for public opinion there - 
can be neither crime nor criminal in the absence of injury to 
the universal moral sense. 


§ 6. The Delimitation of Criminality 


And now as to our delimitation of criminality. For us, all 
crime falls into two extensive categories, according as offense 
is principally occasioned to the one or the other of the two 
primordial altruistic sentiments. So far as this distribution 
is concerned, it is of no consequence what rights may be 
attacked or how the offense may be classified in the codes. 

(1) Offense to the Sentiment of Pity. — The first category — 
offense to the sentiment of pity or humanity — therefore 
includes: (a) attacks upon human life and all manner of acts 
tending to produce physical harm to human beings, such 
as the deliberate infliction of physical torture (“sévices’’), 
mayhem (“mutilations”), the maltreatment of the weak 
and infirm, the voluntary causing of illness, the imposition 
upon children of excessive labor or such work as tends to in- 
jure their health or stunt their physical development; (6) 
physical acts which produce suffering at once physical and 
moral, such as the violation of personal liberty in an egoistic 
end, whether for carnal pleasure or pecuniary gain: — abduc- 
tion of a female or kidnapping for ransom may be cited as 
types; and (c) acts which directly produce moral suffering. 
Defamation (“diffamation”), false accusation (“calomnie”), 
and seduction under promise of marriage are of this last 
character. 

(2) Offense to the Sentiment of Probity. — In the second cate- 


1 These last are not yet recognized by the codes, or at most are classed as 
police offenses (“contraventions”’). 


§6] THE NATURAL CRIME 41 


gory — offense to the elementary sentiment of probity — are 
comprised: (a) attacks upon property involving violence, 
viz.: robbery, extortion by threats, malicious mischief 
(“dévastation”’), arson, and the like; (6) attacks unaccom- 
panied by violence, but involving breach of trust: obtaining 
money by false pretenses; embezzlement; the conveyance 
of property in fraud of creditors (“insolvabilité volontaire”’), 
bankruptcy occurring through negligence or fraud (“‘banque- 
route’’),! the revelation of professional secrets,” the misappro- 
priation of literary property (“plagiat”’), and all the various 
forms of counterfeiting tending to injure the rights of inventors 
and manufacturers; and (c) all indirect injuries to a person’s 
property or civil rights occasioned by false statements or en- 
tries made in some formal or solemn manner, among which 
may be mentioned perjury, the forgery or spoliation of 
official documents and records (“faux dans les actes authen- 
tiques”’), the substitution of children, and the suppression of 
civil status (“suppression d’état civil’’).* 

Offenses excluded. — It will be noted that we thus exclude 
from the field of criminality: (a) acts which menace the State 


1 [“Banqueroute” (unlike our term “bankruptcy”’) signifies a criminal 
offense, viz., the failure (“‘faillite”) of a trader under circumstances of which 
the criminal law takes cognizance. There are two varieties of this offense: 
simple and fraudulent. (a) The general theory of “simple bankruptcy” is 
that the insolvent has been guilty of negligent acts or omissions in dealing 
with his estate. It “consists ‘in those omissions of diligence or violations 
of special duties, imposed by law on the trader, which have contributed to 
his failure or aggravated its consequences’”’ (“Digesto Italiano,” V, 173). 
(6) “Fraudulent bankruptcy” exists where there has been actual fraud, such 
as the making away with books of account or the concealment of assets. — 
TRANSL.] 

2 [Art. 378 of the French Penal Code provides that “Physicians, surgeons, 
and all other officers of health, as well as pharmacists, midwives, and all 
other persons entrusted with secrets in virtue of their status or profession, 
who reveal such secrets (except where compelled to testify in a court of jus- 
tice) will be punished by imprisonment of from one to six months and by a fine 
of from one hundred to five hundred francs.” A similar provision is to be 
found in Art. 163 of the present Italian Code. — Transt.] 

3 (“Suppression d’état civil” = a criminal act operating to deprive an 
individual of the evidence of his civil status, such as the failure to make or 
the false making of declarations of birth, or the forgery, spoliation, or de- 
struction of certificates of birth (“‘actes de naissance’’). — TRAnst.] 


42 CRIMINOLOGY [$ 6 


as a governmental organization. Of this type are such deeds 
as may involve one nation in hostilities with another, unau- 
thorized military enlistments, political rioting, meetings to 
conspire against the government, the utterance of seditious 
outcries, seditious offenses of the press, affiliation with revolu- 
tionary sects or anti-constitutional parties, inciting to civil 
war, ete. (6) Acts which attack the social power but without 
a political object. Among these would be: resistance to 
officers of the law (except when involving murder or the 
infliction of bodily injury), the usurpation of titles, dignities, 
or public functions, without purpose of unlawful pecun- 
iary gain, the refusal to perform a service owed to the 
State, smuggling, etc.; (c) acts resulting in injury to the 
public peace, the political rights of citizens, or the respect 
due to religion, or causing offense to public decency. In 
this division would fall the unlawful invasion of private 
dwellings (“violation de domicile”’),! the exercise of a right by 
force instead of by legal means, the spreading of false news 
. tending to alarm the public, the act of aiding or abetting the 
escape of prisoners, election intrigues, offenses against religion 
or worship, illegal arrests, acts of sexual perversion of which 
no innocent person has been made the victim; and (d) acts 
which contravene the local or special legislation of a given 
country, e. g., gambling, the unlawful carrying of arms, clan- 
destine prostitution, and infringements of laws relating to 
railroads, telegraphs, sanitation, the customs, hunting, fishing, 
forests, and water-courses, and the civil status of citizens, as 
well as violations of many kinds of municipal regulations, etc. 

Certain Objections Considered. — With respect to the fore- 
going classification, De Aramburu,? followed by Lozano,’ 

1 [Violation de domicile” is of two kinds. One comprises unlawful domi- 
ciliary visitations by the police or other public officers. The other consists of 
the act of a private person in effecting an entrance to a dwelling house, 
against the will of the owner, by the use of force or threats, and for an unlaw- 
ful purpose, not necessarily that of theft. — Trans] 

2 De Aramburu, op. cit., p. 102. 


3 Lozano, “La escuela antropologica y sociologica criminal,” p. 98 (La 
Plata, 1889). 


§ 6] THE NATURAL CRIME 43 


contends that it would be easily demonstrable that the crimes 
of one category might with equal propriety be assigned to the 
other, since, they say, that which is unjust is cruel, and that 
which is cruel is unjust. On the contrary, I am firmly con- 
vinced that the two sentiments are entirely distinct, and that 
one may be wounded without the other being affected, al- 
though it may frequently happen that both are wounded by a 
single act. Is there, for example, any cruelty in robbing a 
rich man’s house which has been shut up for the summer, or 
in embezzling a few thousand francs from a metropolitan 
bank? Clearly, improbity alone is involved. On the other 
hand, what element of improbity exists in a murder for revenge, 
occurring solely as the exaggerated reaction against a wrong 
done to the murderer or his kindred? ‘True, it may be said 
that it is always wicked to harm any one in any way whatso- 
ever. But wickedness and injustice are not synonymous terms, 
and in any event, the element of wickedness inherent in the 
last example is not a violation of the sentiment of justice here- 
tofore designated as “ probity.” 

The further objection has been raised that the altruistic 
sentiments possess little uniformity and that the boundaries 
of the field of crime are constantly expanding.! We, of course, 
fully admit that the altruistic sentiments, at a former period 
and in a different state of society, had by no means attained 
their present degree of development. This, in fact, was our 
point of departure in speaking of the progression of these sen- 
timents abreast of civilization. Moreover, it is to be borne 
in mind that the present-day morality is based on altruism, 
whereas the morality of other peoples and other ages was 
based on sentiments of a different nature — patriotism, 
religion, loyalty to the sovereign, the respect due to caste, 
the point of honor, and the like. The purpose of our investi- 
gation, then, is to discover what are the true crimes of con- 
temporary society, — to ascertain what constitutes a crime 


1 Colajanni, “La sociologia criminale,” pp. 54, 55; De Aramburu, op. cit., 
pp. 102-104. 


44 CRIMINOLOGY [$6 


in our eyes — in the eyes of Europeans of the present century. 
There is nothing in this to contradict the possibility of a 
still further development of altruism, or that acts which 
today are not considered as crimes may one day acquire 
that character. Progress, assuredly, will tend more and 
more to the enrichment of the moral sense. “If the moral 
sense becomes augmented,” says Fouillée, “the displeasing 
things of today will become the odious things of the 
future. . . . Our sympathy embraces a continually increas- 
ing number of objects; it extends not only to humanity, 
but to the whole of nature; and, for this reason, it is 
nowadays much more easily wounded than formerly, espe- 
cially in its moral force.” ! 

Thus, it will very probably ensue that many facts today 
regarded as indifferent will come to be viewed as immoral, 
and that others simply immoral will be vested with a criminal 
character. Of the latter class might be instanced the abandon- 
ment of illegitimate children, the failure on the part of parents 
properly to care for their children, or to give them an adequate 
education, or again, vivisection, artificial fattening, and other 
forms of cruelty to animals, which in recent years have: 
aroused the just indignation of zodphilist societies. The 
advance will equally affect the sentiment of probity. All 
those non-punishable acts of chicane which occur in the con- 
duct of civil cases will come to take their place — unless the 
practical difficulties are insurmountable — beside the other 
species of frauds which are today punishable, so that the two 
will become indistinguishable. So, too, a criminal character 
will come to be given to the abandonment of such persons as 
already have, or may be awarded by future laws, the right to 
assistance and support — parents, children, and aged or infirm 
domestics or workmen, without means of existence. 

It is easily understood, however, that the sentiments 
wounded by the crimes of the future will be the same senti- 
ments with which we have dealt, but these sentiments in 


1 Alfred Fouillée in Revue des Deux Mondes, 15 March, 1888. 


§ 7] THE NATURAL CRIME 45 


their higher and more refined development — a state which the 
efflux of time will have rendered much more common than 
at the present day. It is wholly impossible to suppose crimes 
of a different character, or to suppose that offenses to other 
sentiments can ever become crimes. As we have already 
noticed, the tendency is quite the opposite. Offenses not 
involving injury to the sentiments in question, are treated 
less and less as crimes in proportion as civilization increases. 

So much for the future. Does not this glance at it furnish 
new proof of the validity of our concept of crime? 

The offenses which have no place in our scheme, do not 
come within the scope of the sociologic study of crime. They 
are relative to the special conditions of particular countries. 
They do not reveal in their authors, anomaly — the default 
of that part of the moral sense which evolution has rendered 
almost universal. The law-maker, no doubt, ought to adopt 
measures looking to their chastisement, but from our point 
of view it is the true crime alone which, in demanding in- 
vestigation of its natural causes and social remedies, is 
capable of interesting true science. The excluded offenses 
often consist merely of violations of prejudice or contra- 
ventions of custom, or in any event simply run counter to 
the laws of a determinate society —laws varying with 
different countries and unnecessary to the social coexist- 
ence. In these cases investigation of biologic causes is 
unnecessary, and as for remedy, none other is needed than 
chastisement depending in severity upon the degree of in- 
timidation required. 


§ 7. Criticisms of the Theory of Natural Crime 


Objections of De Aramburu et al. — Since 1885, when first 
appeared my definition of natural crime, criticism has been 
unceasing. Some of the objections which have been urged 
are due to a misapprehension. It is said, for example, that 
there can be no such thing as natural crime, because in nature 
the fact of a crime is neither good nor bad: it is an action 


46 CRIMINOLOGY [$7 


like every other and becomes criminal only in the social state. 
But inasmuch as our treatment has been from a sociologic 
standpoint, it is very plain that the natwre with which we are 
concerned is none other than social nature. 

The commonest objection is that many crimes remain 
outside the boundaries which I have assigned to criminality.” 
There is here no room for argument, since this is precisely 
what I have aimed at. My investigations have been limited 
to one section of punishable facts, interrelated by a common 
character, — for it is these alone which possess interest for 
science. 

Views of Vaccaro. — Another writer is willing to concede 
me this right, but asserts that my investigations lack prac- 
tical value, because, he says, if the acts which I have treated 
as natural crimes are now regarded in law as punishable, 
then my discovery comes too late; if, on the other hand, 
such acts are not now punishable by law, the discovery is 
useless, because the social power will recognize in them a 
criminal character only in so far as it has an interest affected 
and is in position to protect that interest.2 This criticism, 
however, confuses the aim of arriving at a distinction whose 
object is purely scientific, with that of ascertaining for the 
guidance of the law-maker what actions should be the subject 
of punishment — something which is not at all within my 
design. The sole object of my concept of crime is to dis- 
tinguish among the punishable facts, those which are governed 
by the same natural laws, because revealing certain individual 
anomalies, principally the lack of a part of the moral sense or, 
in other words, a deficiency in the sentiments which, as the 
basis of morality, are constantly undergoing development 
in the progress of civilized nations. Assuming that my ob- 
servations are accurate, can it be gainsaid that such an in- 


1 De Aramburu, “La nueva ciencia penal,” p. 98 (Madrid, 1887); Luc- 
chini, “Semplicisti”; Colajanni, “La sociologia criminale.” 

2 De Aramburu, Lucchini, Colajanni, ut sup. 

3 Vaccaro, “‘Genesi e funzione delle leggi penali,”’ p. 176 (Rome, 1889). 


§ 7] THE NATURAL CRIME 47 


vestigation possesses scientific interest? And if everything 
that is scientific is not at the same time practical, I venture 
to add that with regard to determining means of repression 
and prevention my concept of crime is far from fruitless, 
as will appear, I hope, in the sequel. 

The same author maintains that the criminalist of the posi- 
tive school cannot conceive crime except as “an act for- 
bidden under a penalty.” “In reality,” says he, “to the 
sociologist who can admit no freedom of choice in the human 
aggregation, search for the natural crime is absurd, because 
this would be something independent of positive laws. Just 
as the explosion of a cannon obeys certain laws of chemistry, 
of physics, and of mechanics, so the constituted authority, 
in forbidding certain acts and permitting others, is merely 
obeying the natural laws of society. Every act prohibited 
under a penalty is therefore a natural crime. I would go 
even further and say that the only existing natural crime is 
that which the laws consider as such.” It seems to me that 
this criticism confuses the meaning of words. Unquestion- 
ably, for the positivist, every violation of law is a natural fact, 
neither more nor less than the promulgation of the laws them- 
selves and the penal sanctions which they contain. But is my 
concept in any way inconsistent with this notion? What I 
have done has been to select from among all these natural 
facts, a certain class of offenses which exhibit the distinctive 
character of a special immorality, and these I have termed 
“natural crimes,’ to denote that, at the present day, they 
are universally such, irrespective of laws and governments. 
This objection, therefore, seems rather a play upon words 
than serious criticism. 

Of those who disagree with my views, Vaccaro alone is 
disposed to scoff at altruism. He takes this to be a word void 
of meaning or at least of no social importance. In answer, 
I venture to quote this notable passage from Fouillée: “Con- 
temporary philosophy, far from deriding the moral instinct, 
tends more and more to its justification, for it finds in that 


48 | CRIMINOLOGY [$7 


instinct an almost infallible intuition of the deepest-seated 
laws of life. Instead of looking upon pity as an illusion, it 
sees in it the foremost and most effectual means of dispelling 
the illusion of the isolated and self-sufficing Ego.” ! 

Vaccaro further asserts that the moral sense cannot be 
made a directive criterion in the matter of criminality, since 
the moral sense itself is in great part owed to the fear and the 
effect of punishment. This being so, he continues, to look to 
the moral sense in order to ascertain what acts ought to be 
punished, would be arguing in a circle.2, But what this author 
overlooks is that acts which offend the interest or the morality 
of an aggregation in a serious measure, have, precisely be- 
cause of this, invariably been followed by a movement of 
social reaction. It is to be admitted that punishments in 
their turn have contributed to the reinforcement of the moral 
sense, since the recollection of penal sanctions transmitted 
by inheritance from generation to generation, has converted 
into an instinct that which, at one time, was solely the effect 
of fear or of a process of reasoning. But it is none the less 
true that punishment alone has never succeeded in carrying 
conviction of the criminal character of actions which have not 
been considered as crimes by public opinion, such as dueling, 
adultery, political offenses, or freedom of thought in respect 
of religion. It is well known that facts of this description 
have been visited by punishments exceeding in severity those 
applied to any other crime. Why, then, do they not equally 
come under the ban of morality? 

Colajanni on the Average Moral Sentiments. — Colajanni, 
the distinguished sociologist, is of opinion that the adoption 
of the average moral sentiments of the superior races as the 
criterion by which to distinguish crimes, would involve the 


1 A. Fouillée, “Les transformations de l’idée morale’ (Revue des Deux 
Mondes, 15 September, 1889). 

2 Vaccaro, op. cit., pp. 176-180. My thanks are due to Scipio Sighele for 
his brilliant article in support of my theory, written in reply to the criticism 
of Vaccaro. See Archivio di psichiatria, scienze penali etc., Vol. X, pp. 410, 
411 (1889). 


§ 7] THE NATURAL CRIME 49 


risk of authorizing crime itself. For example, he writes, the 
average moral sentiment gives rise to lynching in the United 
States; it exacts murder for revenge in Albania and Mon- 
tenegro, as formerly in Corsica and Sicily. It will be noted, 
however, that I have not spoken unqualifiedly of the superior 
races: I have added “of the civilized world.’”’ Albania and 
Montenegro, like all the Balkan countries, are still in a state 
of semi-barbarism. So far as Corsica and Sicily are concerned, 
as the author himself admits, the vendetta no longer meets 
with the approval of the better classes, and in general persists 
only in the lower classes, which are necessarily the most 
backward portion of the population. And as to lynching, 
this is merely a species of summary justice and wholly irrele- 
vant to the present question. 

Moreover, whatever may have been the manner of its 
formation, the moral sense today, beyond peradventure, 
exists independently of punishment. It is for this reason that 
I have deemed it possible to seek out from among the harmful 
facts which it is necessary to suppress, those which must be 
attributed to an inferior degree of individual morality. The 
latter are such as wound the most elementary altruistic 
instincts; here, and not elsewhere, do we find crime. In 
reality it is impossible at the present day to conceive as crime 
any fact whatsoever from which this condition is absent. 

I have suggested that’ although facts of this description 
may be less disturbing to the public peace than certain other 
acts of a different character, the public conscience neverthe- 
less looks upon them as much more serious. A distinction 
thus exists, as I have indicated, between two classes of harm- 
ful acts: on the one hand, acts which place their author in a 
condition of social inferiority, and are known in the popular 
language as crimes; and on the other, acts which are char- 
acterized by revolt against the State or disobedience to the 
laws, without any implication that the agent is lacking in 
the elements of morality which contemporary society deems 
essential. 


50 CRIMINOLOGY [$8 


Dragu’s Theory of Crime. — Dragu, in his recent work,' 
admits that from the moral and social point of view, the 
murderer is an abnormal individual,’ that he differs in his 
psychic make-up from honest men, and that in the case of 
murder, the objective gravity of the crime corresponds to the 
nature of the criminal, the act being irreparable and the man 
unreformable.* For Dragu the word “crime” designates only 
such acts as aim at the destruction of human life — a thing 
which cannot be replaced and admits of no equivalent, — 
as distinguished from attacks upon all other things (“tout 
autre bien”) which may be replaced or made the subject 
of compensation. One might well entertain doubts as to this 
reparability of all criminal acts other than murder. But 
although this writer has thus limited the meaning of “crime,” 
it is apparent that he comes very close to my conception of 
“natural crime.” For, basically, the conclusion which 
results from his theory is that it is impossible for a morally 
normal man to be a murderer. Although the author is un- 
willing to admit it, the principle is identical. What I further 
maintain is, that not only is it impossible for a normal man to 
be a murderer, but it is equally impossible for him to be an 
incendiary, forger, swindler, or thief. 


§ 8. The Same: Views of Tarde 


Here too it may be appropriate to consider an observation 
made by Tarde which, perhaps, has been called forth by the 
expression of my views. “Can an act be criminal,” he asks, 
“from the sole fact that it offends the average sentiment of 
pity or justice? Clearly not, unless it is deemed criminal by 
public opinion. The sight of the dead on a field of battle 
produces keener feelings of horror than the sight of a single 
murdered man. Our sympathies more readily go out to the 
victim despoiled by the raid of a hostile army, than to the vic- 
tim of an ordinary theft. And yet the commander responsible 


1 “T’infraction, phénoméne social” (Paris, 1903). 
2 Op. cit., p. 129. 3 Tbid., p. 158. 


§ 8] THE NATURAL CRIME 51 


for the taking of life in the one case, for the taking of property 
in the other, is not a criminal. The lawful or unlawful char- 
acter of a given act—for example, homicide in lawful 
self-defense, murder for revenge, the seizure of property 
as an act of war or an act of piracy — is determined by the 
received opinion dominating in the social group to which 
one belongs. Moreover, the act which is forbidden by pub- 
lic opinion when it aims at a member of this group, or even 
of a larger group, becomes permitted by that same opinion 
when it strikes outside of the group limits.” ! True enough, 
nor have we forgotten this last fact in speaking of the pro- 
gressive expansion of the moral sense, which, as we have 
explained, from first embracing only the family, finally came 
to include ‘all mankind. But why distinguish the average 
moral sentiment from public opinion? From what is this 
opinion derived if not from the average measure in which 
the moral sentiments are possessed? The point is devoid of 
merit. 

War and Capital Punishment. — The question why a com- 
mander who is responsible for voluntarily causing the death 
of many men is not a criminal admits of easy solution. As 
has already been seen, before we can speak of a criminal, we 
must have the notion of crime. And for this notion, it is not 
enough that the act in question be cruel or unjust: it must, 
in addition, be harmful to society. War, manifestly, is not a 
crime. It always has at least the appearance of social neces- 
sity: its object is not to injure the nation, but to preserve its 
interests or save it from destruction. In one way the case is 
identical with that of capital punishment. Taking life upon 
the battle-field is the nation’s defense against external enemies; 
taking life upon the scaffold is its defense against internal 
enemies. 

But, it may be objected, this very self-defense necessarily 
involves offense to the sentiment of pity. Assuming this to be 
true, offense to the sentiment of pity is an element common 


1 Tarde, “La criminalité comparée”’ (Paris, F. Alcan, 1890). 


52 CRIMINOLOGY [$8 


both to crimes and to acts which are non-criminal, and hence 
cannot of itself serve as a criterion. In our opinion, however, 
there is no such identity of element. The reader who has taken 
the pains to follow us so far, will see the force of this sugges- 
tion. It has been indicated how the sentiment of pity, in its 
common or average measure, is derived from that of sympathy, 
and how sympathy itself arises from the faculty of represent- 
ing to ourselves the feelings of our fellows. So, when we are 
shown a criminal totally destitute of moral instincts and there- 
fore totally differing from us morally, we cannot see in him 
our fellow-being, and consequently cannot feel for him that 
sympathy which renders pity possible. This is because of 
the great importance which the psychic life has for men. 
While the lower animals expel from the community individuals 
of their kind whose physical deformity is offensive, men are 
tolerant and even sympathetic toward physical defects. 
Psychic anomaly alone loses for a man the sympathy of those 
about him, since for them he is not a fellow-being. Thus we 
prefer the society of a faithful dog to that of a brutalized 
man. The moral qualities of the former place him more nearly 
on our own level. He resembles us morally much more 
than the murderer resembles us physically. Man insists 
above all on the moral resemblance. And this seems to explain 
why benevolent-minded persons — even those of the opposite 
sex whose sensibilities are in general more delicate than our 
own — never experience the desire of saving from the gallows 
one who has been sentenced to death for a cold-blooded 
murder. The accomplishment of the ends of justice even 
affords them a certain inward satisfaction. The representa- 
tive power with which they have been endowed makes them 
feel the full horror of the crime, and the fineness of their moral 
instincts prevents them from yielding to its author any place 
within the range of their eas And without sympathy 
no pity can exist. 

For these reasons, although an analogy exists between the 

1 A. Espinas, “Les sociétés animales,” Conclusion, § 1. 


§ 8] THE NATURAL CRIME 53 


two facts of crime and capital punishment, there is none be- 
tween the sentiments which these facts respectively provoke.' 

In the case of war the element of necessity is more emphati- 
cally present. But apart from this, the case admits of similar 
explanation to that of capital punishment. We feel no pity 
toward the enemy, for precisely the same reason which re- 
strains our pity from the criminal: we cannot feel for him this 
sympathy from which pity arises. In this case, however, 
the absence of sympathy is not due to a refined sensibility, 
but, on the contrary, to a sort of historical retrogression, to 
the backward flight of our sentiments to their stage at the 
period of the predatory life, when man considered as his 
fellow-beings none but members of the same clan or horde. 
The stages of development which in the course of centuries 
the sentiment of benevolence has slowly achieved are recrossed 
at a single bound; the sound of the cannon suffices to bring 
back the primitive hatreds of race and tribe and to drive 
forth the love of humanity —this moral instinct so toil- 
somely acquired through the evolution of centuries. 


1 De Aramburu takes issue with me on this point, asserting that in Spain 
every death sentence is the signal for pronounced agitation against its inflic- 
tion, and that every effort is made to procure a pardon for the offender. 
(“La nueva ciencia penal,” pp. 238, 239. — Madrid, 1887.) All I have 
to say is that, in other countries not less civilized, the very opposite is true. 
Witness the wide-spread movement in Belgium in the case of the brothers 
Peltzer; the petition for the carrying out of the death sentence which had 
been passed upon them bore hundreds of thousands of respectable signatures. 
In France the clemency of President Grévy earned for him the popular 
nickname of “the father of murderers”’ (“le pére des assassins’’), and was the 
subject of severe censure on the part of the press. Our readers will also recall 
the riot at Cincinnati (U.S. A.), in March, 1884, which was the culmination 
of a long-standing popular feeling against leniency shown to criminals, but 
which was immediately provoked by the inadequate verdicts in the cases of 
Berner and Palmer, both guilty of murder. An effort was made by the rioters 
to storm the county jail for the purpose of lynching the prisoners. As a 
result of the disturbance, which lasted three days, the court house was burned 
down, 45 persons were killed and 145 injured. — See Martinez, “El derecho 
penal ante la ciencia,”’ p. 59 (Buenos Ayres, 1892). 


CHAPTER II 
Tue Lecat Notion or CRIME 


§ 1. Inadequacy of the Legal Notion. 
§ 2. The Need of Direct Study of the Criminal.! 


§ 1. Inadequacy of the Legal Notion 


In modern society the science of crimes is treated as merely 
a branch of the science of law; punishment has been vested 
with a juridical character; the function of the lawyer extends 
not only to the making of the criminal laws, but to their appli- 
cation. One and the same class of public officers delivers 
judgment in matters both civil and criminal; the court-rooms 
present almost the same scene, — black-robed judges on the 
bench, court-clerks busy with pen and paper, advocates 
presenting their causes. . . . And yet the observer cannot 
but feel that there is no real relation between the two classes 
of cases, — that between these two court-rooms whose en- 
trances are but a few feet apart, the moral distance is immeas- 
urably wide. 

The jurists have taken possession of the science of crimi- 
nality. They have been allowed to do so, and this, it seems 
to me, has been a mistake. The assertion may appear some- 
what strange, but I hope in the course of this work to con- 
vince the reader of its truth. 

Objective Character of Juristic Study of Crime. — For the 
present, however, let us consider how the juridical school 
approaches the criminal phenomenon. In the first place, 


1 [§ 2 = § ITI of original. § II of original appears ante as § 8, c. 1 of the 
present version. — TRANSL.] 


§ 1] THE LEGAL NOTION OF CRIME 55 


what does criminality mean for the jurist? He hardly knows 
the word. He troubles himself not at all about the natural 
causes of crime. Knowledge of such matters is for him, at 
most, a species of academic learning. He looks upon the 
criminal, not as a psychically abnormal man, but as a man 
differing from other men only in the fact that he has com- 
mitted a forbidden and punishable act. The jurist studies 
crime only in its external form; he makes no analysis from 
the standpoint of experimental psychology; the derivation 
of crime does not enter into his calculations. What con- 
cerns him is the ascertainment of the external characteristics 
of the different felonies and misdemeanors — the classifica- 
tion of facts according to the rights which they infringe — 
the quest for the punishment which, proportionally and “in 
abstracto,” is a just punishment, not for the punishment 
which experience has proved efficacious for the diminution 
of crime in general. 

Absence of Accurate Definition. — We might at least expect 
to find an accurate definition of just what the jurist under- 
stands by “crime.” But here too we are disappointed. 
The old utilitarian school never got beyond the notion that 
crime was “an act which it is deemed necessary to forbid, 
because of the harm which it produces or tends to produce,” 4 
or merely “an act forbidden by law,’ or else “some act 
which is detrimental to the public good.” * The vagueness of 
such definitions is at once apparent. They might fit almost 
any sort of act — certainly every act which in any aspect 
could be deemed harmful to society. 

Since then, an attempt has been made to introduce a moral 
element — that of injustice. Thus we are told by a distin- 
guished Italian writer that crime is the “voluntary act of a 
person of sound mind (“di persona intelligente e libera”’), 
harmful to others and at the same time unjust.” * Similarly, 


1 Bentham, “Traité de législation pénale,”’ c. 1. 

2 Filangiert, “‘Scienza della legislazione,” Book I, c. xxxvu. 
8 Beccaria, “‘Dei delitti e delle pene,” § VI. 

4 Romagnosi, “‘Genesi del diritto penale,” § 554 et seq. 


56 CRIMINOLOGY [$1 


the founder of the modern French school maintains that 
“the only thing which the social power can regard as crime 
is the violation of such duties toward society and indi- 
viduals as contribute to the maintenance of the social order 
and are capable of absolute legal enforcement” (“exigibles en 
soi’’).4 

Although this notion has been everywhere accepted, it is 
plainly defective in treating social utility as merely one of the 
‘conditions which render punishable an immoral act. Nor 
can it be other than loose, in positing as the concomitant con- 
dition the idea of injustice in general, without specifying its 
kind or character. The latter fault is exemplified in the follow- 
ing passage from a standard French work on criminal law: 
“Every disturbance inflicted upon the social order is a moral 
crime, since such disturbance is the violation of a duty — that 
of man to society. Hence, the acts with which punitive justice 
has to deal with are of two kinds: (1) those which bear the 
imprint of an intrinsic immorality, and (2) those which are 
intrinsically free from immorality, but assume an immoral 
character because involving a breach of duty. In these 
two cases social crime exists. In the one case the element of 
criminality is intrinsic; in the other it is relative. For the 
greater part, police offenses (“contraventions matérielles’’) 
fall under the second head.” ? In other words, when one does 
an act forbidden by lawful authority, immorality exists 
because of the disobedience to the law. What then is the use 
of singling out the moral element and insisting upon it as an 
indispensable condition of crime? If obedience to law is a 
‘ moral duty, we might just as well fall back upon the defini- 
tions of the older school and say point blank that crime is an 
act forbidden by law. 

For the theory of Rossi, Franck proposes to substitute 
its correlative. The one speaks of the violation of a duty, 


1 Rossi, “Traité du droit pénal,” Book II, c.1. Among others who have 
followed this definition are: Ortolan, Trébutien, Guizot and Bertault in 
France, Haus in Belgium, and Mittermaier in Germany. 

2 Chauveau and Hélie, “Théorie du code pénal,” c, xvu. 


§ 1] THE LEGAL NOTION OF CRIME 57 


the other of a violation of a right: ‘‘No act can be made the 
subject of prosecution and punishment, on the part of society, 
unless it consists of the violation, not of a duty, but of a right 
—a right either individual or collective and founded like 
society itself upon the moral law.”’! The question here intro- 
duced is perhaps only one of words, notwithstanding the 
- author’s efforts to show the existence of a substantial distinc- 
tion. In criticism of Rossi’s definition, Franck brings forward 
a number of instances of duties owed to society, violations 
of which, though harmful, can in no sense be regarded as 
meriting prosecution or repression at the hands of society. 
Such is the duty of “devoting to our country’s service all our 
strength of body and mind.” Such, too, are the virtue-duties 
which conscience enjoins upon us in relation to our fellows, 
as, for example, the practice of charity and the forgiveness 
of injuries. It will be noted, however, that Franck has here 
overlooked the concluding portion of Rossi’s definition, in 
which distinctly appears the qualification that the duties 
contemplated must be absolutely enforcible by law (“exi- 
gibles en soi’). Since the examples cited by Franck exhibit 
no instance of duties thus enforcible, the scope of the two defi- 
nitions is precisely the same. Inasmuch as right and duty are 
correlative terms and no right can exist without a correspond- 
ing duty, no other result would be admissible. Nor is the 
definition of Franck any less vague than its predecessors. 
He gains nothing by adding restrictions, by introducing quali- 
fications, by saying, for example, that the only rights whose 
violation constitutes crime are such as are susceptible of 
exact determination, or, because their enforcement is abso- 
lutely essential to the fulfillment of the duties with which 
they respectively correspond, enforcible by legal means. 
Equally useless is his further suggestion that the violation of 
one of these circumscribed rights does not always or alone 
suffice to constitute crime, and that in addition it is necessary 
that the penal sanction be possible, efficacious, and not of such 
1 Adolphe Franck, “Philosophie du droit pénal,” p. 96 (Paris, 1880). 


58 CRIMINOLOGY [§1 


a nature as to offend public decorum.' In spite of the evident 
care bestowed upon this definition, it is still much too broad. 
For example, a debtor who fails to pay what he owes, violates 
a right fully determinate and enforcible by law. Suppose 
the failure to pay is due to his insolvency, can we call him a 
criminal? Not according to existing laws, even where his 
apparent insolvency has resulted from a fraudulent convey- 
ance of his property. And still another example: A father 
has a right to the custody of his children. If they leave home 
he may take them back by force. Yet no one for an instant 
could suppose that the violation of his right to their custody 
is a crime on the part of the children. 

Moreover, according to the definition under discussion, 
every transgression of law— in fact, every disobedience to a 
lawful order of the public authorities,— would be a social 
crime. Thus we always come back to our starting point. 
The argument is simply a vicious circle. The attempt to 
show us what the law views as a crime, ends in our being 
told that crime, in the eyes of the law, is the doing of that 
which the law itself forbids. 

Notion of Natural Crime the only Solution. —'The concep- 
tion of the criminal act is therefore just as uncertain as before. 
Certainty will only be attained with the determination of the 
particular kind of immorality, which must exist before public 
opinion can say that a crime has been committed. 

It is not sufficient to say with Jhering that crime is the 
ascertained jeopardizing of the conditions of social life 
(“‘constatirte Gefahrdung der Lebensbedingungen der Gesell- 
schaft”’). For one thing, it ought to be specified just what 
acts are of this character. Exactness of description is impor- 
tant, if we are not to confuse the necessary conditions of the 
evolved social life with the conditions necessary to the se- 
curity of the State at a given period. Then again, the 


1 “ Thus,” he says, “a wife who refuses to her husband the right of co- 
habitation would have complete impunity. From the standpoint of public 
decency, any measures which society might adopt in this case would be 
more harmful than the action complained of.” (p. 101.) 


§ 1] THE LEGAL NOTION OF CRIME 59 


danger or harmfulness of an act does not necessarily render 
it criminal. 

It may be urged that our analysis will result in dropping 
from the criminal code a large number of offenses now punish- 
able and which in the interests of social security ought to re- 
main punishable. But what is to prevent the existence, side 
by side with the criminal code, of a separate code of diso- 
bediences (“‘révoltes”), the one dealing with natural crimi- 
nality, the other with all mere transgressions of law which 
public policy finds it necessary to repress with measures of 
severity? Differentiation is one of the characteristics of prog- 
ress. The rules of criminal and civil law, intermingled in 
the codes of Manu and Moses, underwent separation at 
the hands of the European law-makers. Later, a distinc- 
tion came to be made between different classes of crimes, as 
on the Continent, between “crimes,” “‘ délits,” and “contra- 
ventions,” ! and in the English law, between felonies and 


1 [This is the classification of the French Penal Code, “‘ crimes answering 
very roughly to felonies, délits to indictable misdemeanors and contraventions 
to police offenses punishable on summary conviction.” (Stephen, “History 
of the Criminal Law of England,” II, pp. 193, 194.) The distinction is based 
upon the nature of the punishment: an offense is a “crime,”’ “‘ délit,”’ or “‘con- 
travention,” according as it calls for criminal, correctional, or police punish- 
ment. For non-political offenses, criminal punishments are always “peines 
afflictives et infamantes,”’ that is to say, punishments which affect the body 
of the offender, and at the same time render him infamous by entailing his 
civie degradation. They include death, penal servitude (“travaux forcés’’), 
and penitentiary imprisonment (“‘réclusion”). Correctional punishments 
(* peines correctionnelles ”) comprise imprisonments intended to be of a reform- 
atory character, in duration from 6 days to 5 years, and fines of from 16 francs 
upward. Police punishments (“‘peines de police’) are such as involve im- 
prisonment of from 1 to 5 days or fine of from 1 to 15 francs. — Civic 
degradation, it will be noticed, is always an accessary punishment in the 
case of “crimes.” Where the conviction is for a “délit,” there may be a 
suspension, in whole or in part, of certain “civil, civic, and family rights,” 
but, unlike civic degradation, this is complementary and not accessary: 
in other words, it must be ordered in the judgment of conviction. A consider- 
able number of other incapacities and disabilities exist, depending upon, and 
varying with the principal punishment. — “‘ Relégation” (7. ¢., life internment 
in a colony beyond seas), as fixed by a law of 1885, is not included in the 
foregoing division; it is a complementary punishment to be undergone by 
certain recidivists following the termination of a principal punishment, which 
may be either criminal or correctional. (See Gargon, “Code pénal annoté,” 


60 CRIMINOLOGY [$1 


misdemeanors. The formation of a code of natural crimes 
uniform throughout all civilized countries, as opposed to the 
special repressive laws of the several nations, would only be 
the logical outcome of this process. . 

The necessities of scientific study have required us to isolate 
the natural crime. No such study would be possible if we 
were obliged to deal with all the punishable acts heterogene- 
ously assembled in the codes. So, too, the legal notion of 
crime must be laid aside as valueless for our purposes. Con- 
sequently our first step has been to disregard all facts not 
wounding the altruistic sentiments; such facts it is absolutely 
impossible to conceive as crimes. Next, we have reduced the al- 
truistic sentiments to two distinct types. And lastly, we have 
fixed the average measure in which these sentiments are pos- 
sessed by civilized mankind; their nicer development, being pres- 
ent only in a small minority, does not enter into the question. 

In a word, it is not upon the violation of rights but upon the 
violation of sentiments that the concept of natural crime must 
be based. In this, the principle for which we contend is totally 
different from that of the jurists. Nor is there any reason to 
fear that this principle will tend to bring into the field of 
criminality acts which merely reveal immoral inclinations, 
and which have never been and never will be of a punishable _ 
character. Our fixation of the necessary measure of the al- 
truistic sentiments stands in the way. With this as a criterion 
we are effectually prevented from regarding as crimes, acts 
which, despite their harmfulness, cannot properly be made the 
subject of punishment. 


I, p. 40 et seq.; Le Sueur in “La grande encyclopédie,” XXVI, pp. 235, 236, 
XXVIII, p. 333; and post, pp. 212, 328 of the present work). 

The same classification of offenses was followed by the former Italian Code, 
which dealt with the three groups of “crimini,” “delitti,”” and “contravven- 
zioni.” But by the Penal Code of 1889, this tripartite classification was dis- 
carded in favor of the bipartite division of “delitti” and “contravvenzioni.” 
The distinction between these two classes is based, not upon the character 
of the punishment, but upon the intrinsic nature of the offense. — Garofalo, 
however, speaks throughout in terms of the tripartite classification. — 
TRANSL.] 


§ 2] THE LEGAL NOTION OF CRIME 61 


§ 2. The Need of Direct Study of the Criminal 


The Criminal an Individual Incompatible with Society. — 
The importance of fixing the notion of crime in the manner 
we have outlined, will more fully appear in the course of our 
study. Since crime consists in an act which is at once 
harmful to society and violative of one or both of the 
most elementary sentiments of pity and probity, the criminal 
is necessarily a man in whom there is an absence, eclipse or 
weakness of these sentiments, one or both. This is evident, 
because if he had possessed the elementary altruistic senti- 
ments in a sufficient degree, any real violation of them on his 
part would have been impossible. Possession of them is 
perhaps not inconsistent with an apparent violation, but in 
this case the crime is not really a crime. 

The sentiments in question being the substratum of all 
morality, their absence renders the deficient person incom- 
patible with society. If average and relative morality consists 
in the individual’s adaptation to society, this adaptation 
becomes impossible when the sentiments lacking are precisely 
those which the environment regards as indispensable. The 
same thing happens in a narrower circle where a higher sense 
of morality is requisite, and where refinement, the mainte- 
nance of a high standard of honor, and extreme politeness 
are the rule. There the absence of these qualities implies the 
inadaptability of the individual to his environment. Thus, 
in those associations whose morality is based upon sentiments 
of religion or patriotism, violation of these sentiments is a 
mortal offense. Society at large is contented with little: 
it demands that the individual refrain from offending the 
slender measure of morality of which we have spoken, — it 
insists on keeping inviolate that most elementary and least 
refined degree of morality which is vital to its existence. Only 
when this is trampled under foot does society protest that a 
crime has been committed. 

Method of Study. — It is now plain what classes of crimes are 


62 CRIMINOLOGY [$ 2 


to engage our attention. To these classes, as we shall find, 
there correspond, beyond question, two psychic varieties of 
the race, two distinct types — on the one hand, men devoid of 
the sentiment of pity in its average measure, on the other, 
men devoid of the average sentiment of probity. These we 
must study directly, and ascertain the cases in which, because 
of the criminal’s insusceptibility to the sentiment which he 
has violated, the anomaly is irreducible. This insusceptibility 
will depend, as a contemporary writer has excellently put it, 
“upon the existence in the mental organization of lacune 
(corresponding to the loss of a physical member or a physical 
function) whereby these beings are completely dehuman- 
ized.”’! Other cases exist in which the anomaly may per- 
haps be lessened, because there is not a total absence, but 
merely a weakness, of the moral sense. Here the defect 
renders impossible the adaptation of the criminal so long as 
his surroundings remain unchanged, but permits such adapta- 
tion when he is withdrawn from his deleterious surroundings 
and subjected to new conditions of existence. 


1 Th. Ribot in his opening lecture at the Sorbonne (Revue politique e¢é 
littéraire, No. 25, 19 December, 1885). See also Q. Newmann, “Notas sueltay 
sobre la pena de muerte” (Santiago de Chile, 1896). 











CHAPTER I 
CRIMINAL ANOMALY 


§ 1. Anthropologic Data. 

§ 2. Psychic Anomaly. 

§ 3. Hereditary Transmission of Criminal Propensities. 

§ 4. The Distinction between Moral Anomaly and Pathologic Anomaly. 
§ 5. Hypotheses as to the Source of Moral Anomaly. 

§ 6. Classes of Criminals. 

§ 7. The Same: Ferri’s Classification. 


§ 1. Anthropologic Data 


As was said at the close of the preceding chapter, the notion 
of crime for which we contend naturally involves the idea of 
the criminal’s moral anomaly. It may be objected that this 
is sheer assertion,— that the mere fact of the criminal’s 
violation of a moral sentiment gives us no right to conclude 
that his psychic organization is different from that of other 
men,— that, with equal propriety, it may be inferred that he 
is a normal man capable of repentance, who has temporarily 
deviated from the rules of moral conduct. There is no proof, 
we may be told, that the act reflects the nature of the agent or 
establishes his insusceptibility to the sentiment which he has 
violated. Moreover,—so might run the argument — even 
admitting the theory of the naturalists, according to which 
the will is a resultant, still (to quote a contemporary psychol- 
ogist) “the voluntary act presupposes the participation of a 
whole group of conscious or subconscious states which con- 
stitute the Ego at a given moment.” Is it not, then, possible 
for these states so to vary as to produce new voluntary acts 
entirely the opposite of former acts? May not the criminal of 


1 [§ ao in original as a note to the present chapter, pp. 143-145.— 
mae, 


66 CRIMINOLOGY [$1 


today be the honest man of tomorrow? What proof is there 
of the total absence or organic defect of the moral sense, or 
even of the weakness of either of the elementary altruistic 
sentiments? Is it not sufficient to say that the force of certain 
motives may be such at a given moment as to overcome the 
resistance of the moral sense, without going the length of 
supposing the existence in some men of an anomalous psychic 
organization? 

Such doubts are met by the decisive answer, that our knowl- 
edge of the criminal is not limited to what we learn from his 
acts. We are in possession of a whole series of anthropologic 
and psychologic data, which demonstrate the coherence of an 
act of this sort with certain special characteristics of the agent, 
and point to the conclusion that the act is not an isolated 
phenomenon but the symptom of moral anomaly. A brief 
summary of such data therefore becomes inportant. 

Anthropologic Theories; Views of Lombroso. — Although 
efforts had been made from the very earliest times to estab- 
lish a correlation between certain forms of perversity and 
certain external physical signs, it may properly be said that the 
conception of the criminal as an abnormal being is wholly 
modern, in fact, contemporary. Gall’s theory was quite 
different from that of the present-day anthropologists. As is 
well known, he assigned to each human propensity a separate 
portion of the brain, the development of the particular pro- 
pensity being recognizable by the conformation of the skull 
at the corresponding place. According to this theory, each 
passion, each propensity, good or bad, had its particular 
“bump.” Gall, however, never dreamed of describing 
the criminal as a degenerate. This is an idea of recent origin 
due to the researches of Lauvergne, Ferrus, Lucas, Morel, 
Despine, Thomson, Nicolson, Virgilio, and others. As for 
Lombroso, his belief was that the presence of certain physical 
characteristics frequently found in criminals, afforded ground 
for treating the criminal as an anthropologic type. Of the 
characteristics which he has thus noted, the principal are: 


$1] CRIMINAL ANOMALY 67 


asymmetry of the cranium or of the face, submicrocephaly, 
anomaly in the shape of the ears, the absence of beard, ner- 
vous contractions of the facial muscles, prognathism (7. e. the 
elongation, prominence, or obliquity of the jaw-bones), 
inequality in the size of the pupils, flat or misshapen nose, 
retreating forehead, extreme length of the face, exaggerated 
development of the zygomata, and the neutral tint of the 
eyes and hair.! None of these characteristics is constant, 
but comparison of criminals with non-criminals justifies the 
assertion that their occurrence is more frequent among the 
former. 

Lombroso’s conclusions, in whole or in part, have been 
attacked or confirmed by a number of subsequent writers, 
notably Benedikt, Ferri, Marro, and Corre. It seems, how- 
ever, to be generally admitted that in criminals, the occip- 
ital region exhibits a much greater development than the 
frontal region. According to Corre, this characteristic signi- 
fies the predominance of the occipital activity — that which 
is in probable alliance with the impulsive sensitivity — over 
the frontal activity, which is today recognized as an activity 
of a purely intellectual and reflective nature.” 

Still, the authorities are very far from being at one on this 
point, as shown in the various Congresses of Criminal Anthro- 
pology, held at Rome, Paris, Brussels, and Geneva. Indeed, 
the characteristics described by some writers as peculiar to 
criminals, are said by other observers to be found in larger 
proportion among the non-criminal. It must, however, 
be conceded, as Marro has said, “that all who deal with the 
physical study of the criminal are forced to the conclusion 


1 Lombroso, “‘L’uomo delinquente,” p. 284 (4th Ital. ed., Turin, Bocca, 
1889), and French translation: “L’homme criminel’’ (Paris, F. Alcan, 1895). 
Among other characteristics studied by this author and his pupils is especially 
worthy of attention one indicated by Ottolenghi, viz., the scarcity of gray 
hair and baldness among criminals, as among epileptics and crétins —a 
condition which in his opinion is in keeping with their lesser degree of sensi- 
bility and emotional reaction. (Appendix to “L’uomo delinquente,” Vol. IT, 
p. 470.) 

2 Corre, “Les criminels,”’ p. 37 (Paris, 1889). 


68 CRIMINOLOGY [$1 


that he is a being apart.” Few who have ever visited a prison 
or penitentiary will maintain the contrary. Without under- 
taking to examine all the works which have appeared on this 
subject, I propose briefly to indicate some of the character- 
istics which, by reason of their frequent occurrence, have 
particularly impressed students of the criminal. 

Physical Anomalies. — With respect to anomalies of a re- 
gressive character, Virgilio, as the result of an examination of 
living criminals, found 28% who had retreating foreheads. 
Post-mortem examination by Bordier of criminals who had 
suffered capital punishment, showed a slightly larger propor- 
tion — 33% — of the same characteristic. This anomaly, it 
should be noted, attains a proportion of but 4% among persons 
who have never been convicted of crime. The difference in 
percentage between the criminals examined by Virgilio and 
the post-mortem cases of Bordier, is unquestionably due to 
the fact that the latter necessarily included a larger number 
of true criminals — a fact which we may fairly assume from 
the very circumstance that in these cases the full penalty 
of the law was exacted. It is of course probable that even 
among the executed offenders, some were lesser criminals 
or mere “révoltés.” Prognathism is still more frequent. 
Penta’s observation of 500 convicts disclosed the existence of 
this anomaly in the proportion of 45%. Again, Lombroso 
notes the undue development of the lower part of the forehead, 
which he describes as prominence of the supra-orbital ridges 
and the frontal sinuses, in 66.9 cases out of each 100 criminal 
skulls examined! The figures of Bordier approach this 
closely, the proportion observed by him being 60%. Marro, 
however, found but 23% among inmates of prisons and 18% 
among the non-criminal.? According to Lombroso, euryg- 
nathism (exaggerated distance between the zygomata) is 
present to the extent of 36%. The same anomaly to an ex- 


1 “T’uomo delinquente,” pp. 173, 174 (8d. ed. 1885). 
2 “Caratteri dei delinquenti,” pp. 156, 157 (1887). 
8 “T,,uomo delinquente,” p. 176. 


§ 1] CRIMINAL ANOMALY 69 


treme degree was noticed by Marro in 5 criminals out of 141, 
without a single case being discovered among the non-crim- 
inal.! The last observer assures us that in 13.9 cases out of 
100, he verified the complete absence of beard; among the 
non-criminal this trait shows a proportion of only 1.5%.? 
He also noted low and narrow foreheads (“fronts petits’’) 
in the proportion of 41% among criminals, as opposed to 15% 
among the non-criminal.? Lombroso found many cases of 
microcephaly and a large number of cases of submicrocephaly 
among criminals. These anomalies, we know, are quite rare 
among normal persons.‘ In the prisons of Waldheim, out of 
1,214 inmates, 579 exhibited physical deviations from the 
normal type (Knecht, 1883). Of 400 persons presumably 
honest, but one had the typical physiognomy of the ex- 
treme criminals (Lombroso). 

As for the cranial deformations which may be called terato- 
logic or atypic, such as plagiocephaly, scaphocephaly, and 
oxycephaly, Marro found them present in almost equal 
numbers among prison inmates and persons reputed honest. 

It has, however, been observed that the presence of a group 
of many anomalies, whether degenerative or teratologic, 
occurs more frequently in a single criminal subject than in 
any single non-criminal individual. In fact, Ferri’s compari- 
son of 711 soldiers with 699 prison inmates showed 37% of 
the soldiers as against 10% of the prisoners to be without 
anomaly. Irregular characteristics to the number of three or 
four were remarked in individual soldiers, the proportion of 
such individuals being 11%. Of the prisoners 33% showed 
similar groups of anomalies in individuals, but, whereas 
among the soldiers the number of anomalies was never in 
excess of three or four to the individual, the individual 
prisoner showed as many as six or seven or even more.° 

1 “Caratteri dei delinquenti,” p. 128. 2 Tbid., p. 149. 

* Ibid., pp. 125, 126. 

* “L’uomo delinquente,” pp. 232, 233, 240. 


5 “T’omicidio,” p. 211 (Turin, 1895). It is a mistake to criticize Ferri’s 
comparison on the ground that soldiers are especially healthy and robust 


70 CRIMINOLOGY [$1 


But assuming the accuracy of all these observations to be 
beyond dispute, they still do not give us an anthropologic 
type of the criminal. It has not been possible to fix a single 
constant external characteristic which will enable us to dis- 
tinguish him from the normal man. One fact alone seems to 
have been definitely established, namely, that among crim- 
inals certain characteristics are found oftener in one class 
than another. The murderer (“‘assassin’’), for example, as 
Lombroso says, almost always “has a cold and glassy look, 
sometimes bloodshot eyes, always a large nose which is fre- 
quently aquiline or hooked, long ears, heavy jaws, widely- 
spaced zygomata, crisp and abundant hair, strongly 
developed canine teeth, and thin lips; he often suffers 
from nervous contractions and twitchings confined to one 
side of the face, the effect of which is to lay bare the canine 
teeth and seemingly impart to the countenance an expres- 
sion of sardonic menace.” ! 

Some observers add that there is less physical resemblance 
in a given section of the country between murderers generally 
and the rest of the population, than between the latter and the 
inhabitants of other sections, even where these are ethno- 
graphically different. Thus the murderers of Southern Italy 
would seem to differ more from the soldiers of the same prov- 
inces, than the latter from the soldiers of Northern Italy, 
in respect of the frontal diameter, frontal index, mandibular 
diameter, and development of the face.” 

Except for the immobility of the eye, the vagueness of the 
look, and thinness of the lips, the same characteristics are very 
often observable in the whole class of homicidal criminals 
(“‘meurtriers”’). In this class there is a very marked predom- 
inance of strongly-developed supra-orbital ridges, of widely- 
separated zygomata (a characteristic common to certain in- 
men. The comparison is limited to the matter of cranial anomalies. An 
anomaly of this character, it is to be borne in mind, seldom represents a 
physical infirmity sufficient to cause the rejection of a recruit. 


1 Lombroso, ““L’uomo delinquente” p. 232 (4th ed., Turin, 1889). 
2 Ferri, “‘L’omicidio,” p. 206 (Turin, 1895). 


§ 1] CRIMINAL ANOMALY 71 


ferior races, such as the Malays),! and contracted foreheads,” 
but especially noticeable are the excessive length of the face 
in relation to the cranium,’ and the undue size of the man- 
dibles. No observer questions this last-mentioned character- 
istic; it is an unmistakable sign of brutality or violence. 
Its derivation, however, is the subject of discussion, some attrib- 
uting it to degeneracy (Lauvergne), some to atavism (Ferri 
and Delaunay), and still others simply believing it always to 
exist in individuals of a retarded evolutionary development 
(Manouvrier). 

However this may be, it is recognized that “among man- 
kind as a whole, as in our own race, the smallness of the fore- 
head and the relatively excessive size of the jaw, coincide with 
homicidal tendency” (Foley). Emile Gautier, who under- 
went a term of imprisonment for political reasons, declared 
that after the lapse of many years, his mind still retains the 
composite photograph of the criminal type, especially vivid 
being the impression of its heavy jaws.* It suffices to glance 
at a group of photographs of homicidal criminals to be con- 
vinced of the frequency of this characteristic. The same thing 
is noticeable among rapists — a circumstance easily explicable 
if one remembers that rape is a result of the same violent 
instincts which impel attack on human life. 

Thieves, on the other hand, appear very often to be char- 
acterized by cranial anomalies of the sort that may be called 
atypic, such as submicrocephaly, oxycephaly, scaphocephaly, 
and trococephaly. Their physiognomy, too, is recognizable 
by the mobility of the countenance, the small size and vivacity 
of the eyes, the thickness of the eyebrows (which often meet), 
their small and retreating foreheads, their long, twisted, or 

1 Topinard, “‘ Anthropologie,” p. 492 (Paris, 1879). 

2 E. Ferri, op. cit. 

* Sometimes it is the opposite type which occurs: brachyprosopy, or 
extreme smallness of the face. This I have observed in some murderers, 
ee by a frontal diameter very short in relation to the bizygomatic 


4 E. Gautier, “Le monde des prisons” (Archives de l’anthropologie crimi- 
nelle, 15 December, 1888, — Lyons). 


72 CRIMINOLOGY [$1 


misshapen noses, and the pallor of their complexion coupled 
with an inability to blush (Lombroso). 

Without attaching undue importance to this description, 
I am compelled to admit that it has very often been confirmed 
by my own direct observation. In visiting prisons and peni- 
tentiaries and observing the inmates, I have frequently been 
enabled to distinguish those under sentence for homicide from 
others whose offense was theft or obtaining money by false 
pretenses, although I knew nothing of their previous history. 
On these occasions, as appears from my notes, I came to 
the wrong conclusion not more than seven or eight times 
out of a hundred. 

But attempt at description does not stop here.. Marro, 
in the work before cited, assigns distinctive characteristics 
to no less than eleven classes of criminals. It must, however, 
be said, that the most marked of these distinctive features are 
not all physical, but are for the most part drawn from their 
propensities, habits, and covetousnesses, as well as from their 
degree of intelligence and education. 

Physiognomic Types. — One thing, however, seems clear. 
The three classes which I have just indicated are especially 
distinguishable by a peculiar expression of their physiognomy. 
So that if we cannot arrive at an anthropologic type of crim- 
inal, it may at least be affirmed that we have these physiog- 
nomic types, viz., (1) the murderer, (2) the violent criminal, 
and (3) the thief. 

It has been said that comparison of the inmates of penal 
institutions with persons at liberty, shows that many of the 
characteristics just noted are more frequently found in the 
former than in the latter. Still, even among prisoners, the 
proportion of anomalies is but 45 or 50%, and the larger 
number of criminals would therefore seem to be without them. 
In this lies the weakness of criminal anthropology. ‘How 
are we to speak of a criminal type when 60 out of every 100 
criminals show no vestige of its characteristics?” 

Such an objection, however, would not really be serious if 


§ 1] . CRIMINAL ANOMALY 73 


we could regard it as settled that there exists a greater pro- 
portion of congenital anomalies in a given number of convicts 
than in an equal number of non-convicts. Unfortunately, 
this has not been established. If we were in possession of such 
proof, I would not hesitate to regard it as a definite gain for 
criminal anthropology, notwithstanding that only 60% of 
_ the convicts might answer the typical description, and that 
the same description might apply to 20% of the non-convicts. 
For it is clear that the latter class cannot all be honest men: 
it is bound to contain many individuals whose criminal pro- 
pensities but await the opportunity to reveal themselves. 
The fact is well known that not the half of those guilty of 
established crimes are brought to justice. Moreover, these 
established crimes represent but a small part of the total 
number of crimes committed, most of which are not discovered, 
or else are not reported to the police. Finally, there are social 
classes in which the criminal instincts reveal themselves under 
other forms, keeping clear of the criminal code: “Encourage- 
ment to perilous adventures is preferred to slaying with the 
knife, cheating at play supplants highway robbery, seduction 
and subsequent desertion take the place of rape.” ! 
“Through cowardice or stupidity,” adds Corre, “we persist 
in closing our eyes to the fact that under the arrogance and 
brilliant externals of high political and financial life, lurk 
murder, theft, and crime of every description. Crime seems 
to become minimized so as almost to lose the character of 
crime, in proportion as it assumes a wider significance and 
becomes more deserving of chastisement and reprobation by 
the standards of social conventions. It is a truth as common- 
place as lamentable that the man who holds cheap the rights 
of his neighbors is not always found behind prison walls: 
in very considerable number he poses as a virtuous personage 
in the ranks of the rich and respected. This is what will 
make it difficult to apply anthropologic principles to the 
study of the criminal. . . . Many a supposedly honest man 


1 EK. Ferri, op. cit. 


74 CRIMINOLOGY [$1 


is more deserving of the ball and chain than the humbler 
law-breaker upon whom he has aided in fastening them.” 4 

In short, to compare the convicted with the non-convicted 
would be a serious mistake. Instead, for terms of comparison 
we must take, on the one hand, the true criminals, on the other, 
the really honest men. This latter class is undoubtedly the 
harder to recognize with certainty, but difficulty is also pre- 
sented by the former, since it is by no means as numerous as 
that of the convicted. Our two terms are therefore (1) a class 
in which honest men are in majority and (2) a class in which 
criminals are in majority. In view of this, we need not be 
astonished by the fact that if criminality has a physical 
stamp, that stamp does not appear on all the inmates of 
prisons. Moreover, if it be true that these stigmata are more 
often found among the convicted, clearly this fact would 
have an important significance. 

In that case the objection referred to would be unfounded. 
But what criminal anthropology really lacks, as I have here- 
tofore had occasion to suggest, is convincing proof that a 
given character of the skull or skeleton is found more often 
among criminals than among persons presumably honest. 

We must then be content with the physiognomic character- 
istics or rather physiognomic expressions of which mention 
has been made. These do not constitute true anthropologic 
types. The case is the same as that of the international dis- 
similarities existing between members of a single race. We 
speak, for example, of the different European types, but can 
anyone say just what are the exact features which distinguish 
them? Stress can be laid on nothing in particular. The differ- 
ence consists of something in the features taken as a whole — © 
something which gives to the face an almost indefinable char- 
acter, but nevertheless enables us to distinguish any group, 
however small, of Germans from an equal number of French 
or Slavs or Italians. 

Although Tarde, in a brilliant chapter of his “Criminalité 

1 Corre, ‘‘Les criminels,”’ Introduction (Paris, 1889). 


§ 1] CRIMINAL ANOMALY 75 


comparée,” has raised many questions touching the anthropo- 
logic characteristics of criminals, he nevertheless concludes 
by admitting the reality of the type. But instead of seeking 
to distinguish this type from that of the normal man, he op- 
poses it to the respective types of the scholarly man, the re- 
ligious man, the artistic man, and the virtuous man. This is 
an idea which is perhaps destined to meet ultimate acceptance, 
but the lack of relative data forbids its present discussion. 

All that can be said is that the contrast between certain 
characteristics common enough in criminals, and the ordinary 
characteristics of persons not suspected of crime, would be- 
come much more pronounced if it were possible to compare the 
criminals with their exact opposites, that is to say, virtuous 
men. But we are obliged to content ourselves with the ob- 
servations which, up to the present time, it has been possible 
to make.! 

For Tarde, however, as well as for Colajanni and Prins, 
the criminal type is not an anthropologic type, such as that 
of the Chinese or the negro, the Anglo-Saxon or the Latin, 
but merely a professional or social type formed by the subjec- 
tion of individuals to identical conditions of existence. Un- 
der such circumstances they assume “a uniform imprint.” 
Imitation, the exercise of the one trade or profession, the one 
kind of mental exertion, the repetition of the same movements 
whether in a drawing-room or a coal-mine, are all factors 
in the acquisition of common muscular and nervous habitudes, 
which are reflected in the bearing, the facial expression, the 
character, and even in the physical aspect of the persons af- 
fected . . . “We can all tell a sailor from an artist. In my 
younger days there existed a type then easily recognizable, 


1 Lombroso maintains that Italian criminals resemble French and German 
criminals much more than any one of these groups resembles its national 
type. Heger, on the contrary, declares that his observations have yielded an 
opposite result. It must be kept in mind, however, that Heger’s observations 
were limited to craniology, and were not concerned with physiognomic traits. 
For my own part, I have not been able to make any direct observations on 
the subject. 


76 CRIMINOLOGY [$1 


but now extinct — the republican of °48. . . . Among work- 
ingmen, notice the quarry-man, the glass-blower, the coal- 
miner, the brickmaker. . . . There is also a type of habitual 
criminal. . . . To recognize it one needs but visit a prison. 
. . . Experience makes it easy to distinguish the recidivist, 
and even the particular kind of recidivist. . . . There is a 
still more special type of thief who may be readily dis- 
tinguished and recognized —an ill figure (“individu dé- 
hanché’’), low of forehead, with an air of impudence and 
mockery, who represents the pickpocket.” Without passing 
judgment on this suggestion, which doubtless is not without 
a basis of fact, we are inclined to question the relevancy of 
the low forehead, which can hardly be the result of imitation. 
A further fact which is difficult to explain otherwise than 
anthropologically should be marked, viz., that the frequency 
of the regressive anomalies, noted above, shows much increase 
among the extreme criminals — those responsible for the 
most frightful crimes committed under the most atrocious 
circumstances. For example, murderers for the sake of rob- 
bery seldom fail to show some of the salient characteristics 
which approximate them to the inferior races, such as prog- 
nathism, narrow and retreating forehead, prominent supra- 
orbital ridges, ete. It is evident that this can be established 
only by cumulative proof, but such proof, in fact, is abundantly 
found in works on anthropology and in the accounts of 
celebrated cases. 

My own experience has always been in the affirmative. 
On one occasion, for instance, I selected a number of notorious 


1 Prins, “Les doctrines nouvelles de droit pénal”’ (Brussels, 1895). 

2 “The anatomic signs occur more frequently among notorious figures 
in the criminal world than among its ordinary rank and file,”’ said Benedikt 
in his notable address to the Congress of Phreniatry, held at Antwerp, in 
September, 1885. This is why, as I have before indicated, certain absolutely 
degenerative cranial anomalies such as retreating forehead and prognathism, 
have been found in larger proportion among criminals who had suffered capital 
punishment than among living prisoners. Since the former had met the ex- 
treme penalty, they must have been all, or nearly all, extreme criminals, while 
the living prisoners must have included a larger number of lesser criminals 
or mere “révoltés.” 


§ 1] CRIMINAL ANOMALY . 77 


murderers whom I had never seen, but with the details of 
whose crimes I had become acquainted from reading the docu- 
ments on file in their cases. Visiting them in prison, I reached 
the conviction that not one of them was exempt from some 
very striking degenerative or regressive characteristics.! 

Still, these characteristics are not always the same: some- 
times it is one which is present, sometimes another. The 
murderer type cannot be described anthropologically. It 
is no wonder, then, that physical anomalies are still less pro- 
nounced and constant in the lesser criminals. In the first 
place, we cannot be sure that all those who are authors of 
crime in the eye of the law are true criminals according to the 
psychologic acceptation which we have assigned to the term. 
Again, it would be strange if anomalies of the same importance 
were observed in ordinary criminals. It is natural that the 
latter are physically less distinguishable from the normal man; 
for the same reason, they are morally less remote from him. 
Their crimes while revolting to us, do not appear absolutely 
contrary to human nature. It is even possible for us to 
imagine, not without a sense of fear, that under certain cir- 
cumstances, we ourselves might be driven to do something of 
the same kind. This idea, which flits through our mind, 
we reject with terror — terror which is wholly unnecessary, 
because, our character being fixed, we are in no danger of 
experiencing that dreaded volitive movement. Nevertheless, 
the fact of having entertained even for an instant the idea of 
this possibility proves to us that there are criminals whom we 
can understand, who are beings not wholly alien to our moral 
nature. That even physically these individuals do not show 
marked traits of degeneracy is therefore not at all remarkable. 
But although the anomaly is less, this does not mean that it 
is imperceptible. That evil facial expression, that indefinable 
but sinister appearance which we associate with the term 
“gallows-bird,” is very common among the inmates of 


1 See my “Contribution & l'étude du type criminel,” published in the bulle- 
tins of the “Société de Psychologie physiologique ” (Paris, 1886). 


cs CRIMINOLOGY [$1 


prisons. Scarcely ever do we meet with regular features or a; 
pleasant expression. Ugliness, extreme and repulsive, not, 
however, amounting to true deformity, is very common in 
these establishments, and, strange to say, especially among the 
women. I remember visiting a prison for women, where, out 
of 163 inmates, I found but three or four with regular features 
and only one who could be called pretty; all the rest, old and 
young, were more or less of an ugly and repulsive appearance. 
It will be granted that no such proportion of ugly women 
exists in any race or in any other environment. 

The same thing is noted by Tarde. “It is certain,” says 
he, “that the beautiful classic head, with its straight brow 
and nose, its small and gracefully curved mouth, its rounded 
cheek, its small ear set close to the temples, affords a perfect 
contrast to the head of the criminal, the ugliness of which is 
its most pronounced characteristic. Out of 275 photographs 
of criminals, I found but one attractive face, and this of a 
woman; the majority of the others were repulsive, and mon- 
strous faces were not lacking.” ! 

Speaking of his fellow-prisoners, Dostoiefisky says: “Sirot- 
kin was the only one of the convicts who was really handsome. 
As for his companions of the special section (that of the life 
prisoners) — to the number of fifteen — they were frightful 
to behold with their hideous, disgusting physiognomies.”’ ? 

What then is the conclusion? From the anthropologic 
point of view, as has been seen, the type is very far from being 
fixed, and it is doubtful whether further observations will 
succeed in establishing it. The only thing which has been 
clearly ascertained is that there exist certain physiognomic 
characteristics, or rather physiognomic expressions, which 
enable the observer readily to distinguish one group from 
another — to distinguish murderers from thieves, and from 

1 Tarde, “La criminalité comparée,” p. 16 (Paris, F. Alcan, 1886). 

2 “House of the Dead,” Part I, c. rv, p. 54. [This and the passages from 
Dostoieffsky’s work subsequently occurring are taken from the English ver- 


sion in Everyman’s Library (London, J. M. Dent & Sons, Ltd., and New 
York, E. P. Dutton & Co.). — Transt.] 


§ 2] CRIMINAL ANOMALY 79 


both of these the violent or impulsive criminal.!. In my own 
opinion, however, as will be developed in the sequel, the crim- 
inal, in a non-barbarous society, is an abnormal being, since 
he differs from the majority of his contemporaries and fellow- 
citizens by the want of certain sentiments and certain repug- 
nances, this want being associated with a peculiar tempera- 
ment or a deficiency in moral energy. The question whether 
this want is organic, or, in other words, whether the moral 
anomaly has always a physiologic substratum, unfortunately 
must remain unanswered. The substratum might be found 
in an imperceptible deviation of the organs or the nervous 
system or in the molecular formation, but these are matters 
which the insufficiency of our means of observation makes 
it impossible to take into account.? 

We shall therefore leave the anatomic aspect of the subject 
and direct our attention to the criminal’s psychic anomaly, 
without admitting or denying that this latter may have a 
purely physical source. 


§ 2. Psychic Anomaly 


Extreme Cases. — We must first look at criminality in its 
most serious forms. ‘Take murderers of the most brutal 
sort — who strangle old women, who, like Papavoine, cut 
the throats of children, who commit crimes like those of Jack 
the Ripper — can any one doubt their moral insensibility? 
This lack of moral sensibility is even more striking in the case 
of young offenders, — for instance, the sixteen-year-old boy 
(referred to in my communication to the “Société de Psy- 
chologie physiologique”’) who early one morning got out of 
bed, went to the stable where a beggar child against whom 
he had some grievance, had taken shelter for the night, 
wakened the little fellow and told him he was about to throw 


1 “Physiognomy and psychologic character are the most important cri- 
teria of the born criminal.” Forel in Actes du Congrés de Genéve, 1897. 

2 To use the apt expression of Benedikt, ‘“‘We are very far from possessing 
an anatomy of molecules.” 


80 CRIMINOLOGY [$2 


him in the well — a purpose which he carried out in spite of 
his victim’s tears and entreaties,—or the twelve-year-old 
girl convicted in Berlin, who, coveting the earrings of a child 
of four, snatched them away from her and seizing the infant in 
her arms, tossed her out of a second-story window, all of which 
the prisoner confessed at her trial without the least symptom 
of feeling, adding that her intention was to sell the earrings 
and buy sweets with the money, and that she had killed the 
child to prevent the theft being found out. 

Since the moral anomaly in these cases is too manifest to 
be doubted, the whole question comes to this: Is such anomaly 
of a pathologic nature? Is it the same thing as insanity? 
Should it be regarded as a new nosologic form — the “moral 
insanity”’ of the English writers? The existence of this form 
of alienation is questionable, to say the least. In spite of the 
utmost efforts to discover traces of insanity, one is often obliged 
to admit that the individual under examination possesses 
an intelligence which leaves nothing to be desired, that he 
exhibits no nosologic symptom, unless it be the absence of the 
moral sense, and that, to quote a French physician, whatever 
may be the subject’s unity of mind, “the psychic key-board 
has one false note and only one.” 4 

But I shall presently revert to this topic. In the mean- 
time, I wish to make it clear that individuals such as those of 
whom I have just spoken are in respect of their psychic nature 
beings apart, —every one feels it. Still, these dangerous crim- 
inals, these children born with ferocious instincts, are only the 
most salient cases. In descending the scale of criminality, 
it is quite natural that the anomaly becomes less pronounced, 
but it nevertheless exists down to the very bottom. “Natura 
non facit saltum.” What we have is a decreasing series whose 
lowest terms approximate so very closely to the normal state 
that it becomes difficult to distinguish them. For our purposes, 
therefore, an examination of the foot of the scale will be of 


1 See V. du Bled, “Les aliénés en France et & l’étranger” (Revue des 
Deux Mondes, 1 November, 1886). 


§ 2] CRIMINAL ANOMALY 81 


little value; we must fix our attention on the classes which 
constitute the intermediate degrees. 

Intermediate Cases. — Let us take, first of all, the inmates 
of penitentiaries. Complete descriptions of their sentiments 
are at hand. We are told of their impassibility, of the insta- 
bility of their emotions, of their tastes, of their unbridled 
passion for gambling, drink, and debauchery. Imprudence 
and lack of foresight are two characteristics which especially 
distinguish them, as was pointed out by Despine many years 
ago. Their frivolity and changeableness have also been noted. 
To these traits may be added, says Lombroso, “the exaggera- 
tion of that tendency to mockery and foolish jest, which 
has long since been recognized as one of the surest signs of 
wickedness or of limited intelligence (‘Risus abundat in ore 
stultorum’; ‘Guardati da chi ride troppo!’) — a tendency 
which especially reveals itself in the need of turning into 
ridicule and loading with absurd and obscene names the things 
which are holiest and most dear.” This flippancy serves to 
explain at the same time the propensity of criminals in general 
and thieves in particular, for purposeless and almost uncon- 
scious lying, as well as the habitual inexactness of statement 
which proves a lack of precision in their perceptions and 
memory.! Their moral insensibility appears from the brazen- 
ness of their public confessions. Murderers who confess do 
not hesitate to describe the most horrible details of their 
crimes; they exhibit complete indifference to the shame and 
grief which they bring upon their families. “On the night 
of 21-22 September, 1846,” relates the Abbé Moreau, “Mme. 
Dackle, residing at No. 10, Rue de Moineaux, was the victim 
of an unprovoked murder. Extended search by the police 
culminated in the arrest of the guilty persons, among them a 
woman named Dubos. When asked why she had taken part 
in the murder, her sole answer was: ‘So that I could have 
pretty hats.’ ...An old man, one Cornu, .. . meeting 
some young thieves who were warm admirers of his prowess, 

1 Lombroso, op. cit., p. 446. 


82 CRIMINOLOGY [$2 


was asked by them: ‘Well, Pére Cornu, what are you doing 
now?’ ‘Still the “grande soulasse,” boys, still the “grande 
soulasse,”’’ was the cheerful reply. — The ‘grande soulasse’ 
is murder coupled with robbery. . . . To one of his jailers, 
who asked him why he had killed Adéle Blondin, Prévost 
answered: ‘What else could I do? She was a millstone 
around my neck, and there was no other way to get rid of 
her.’” } 

Examples might be multiplied indefinitely. Drago tells 
us of Ruiz Castruccio, who poisoned a man and then choked 
him to death. In referring to his crime, the murderer said 
with no trace of emotion, “I killed him as Othello killed 
Desdemona.” The notorious Castro Rodriguez reénacted 
before his judges the murder of his wife and ten-year- 
old daughter — a crime which he had committed under cir- 
cumstances of peculiar atrocity, — even going so far as to 
burlesque the actions of his victims. At the conclusion of his 
interrogatory, he requested the officials not to withdraw a 
sum of money which he had on deposit in a bank, so that he 
might not lose the interest!? I myself heard the confession 
of one Tufano in which he related that he had strangled his 
wife in order to marry another woman who would bring him a 
dowry, and told of the horrible manner of his victim’s death, 
which did not ensue until after half an hour of agony.’ 

Criminal Sentiments. — Such men are wholly incapable 
of remorse, not only of that genuine remorse which, as said 
by Lévy-Bruhl,‘ is no longer the fear of punishment, but its 
hope and desire, and leads to an inconsolable brooding over 
the harm one has inflicted, but incapable even of a passing 
regret or the slightest betrayal of emotion at the mention 
of their victim’s name. 

Observations reported by those unfamiliar with the life 


1 Abbé Moreau, “‘Le monde des prisons,” pp. 25, 26 (Paris, 1887). 

2 Drago, ‘Los hombres de presa,” pp. 65, 66 (2d. ed. Buenos Ayres, 1888). 
3 See my “Contributions,” above cited. 

4 Lévy-Bruhl, “L’idée de responsabilité,” p- 89 (Paris, 1884). 


§ 2] _ CRIMINAL ANOMALY 83 


of the offender may perhaps be open to question, but we are 
obliged to lend credence to details coming from persons who 
have lived within the four walls of a prison. The Abbé 
Moreau, who was chaplain of the Grande Roquette, thus 
describes his charges: “When you see them at close range, 
you wonder if they have souls. The impression which they 
give, of insensibility, heartlessness, and naturally ferocious 
instincts, is so great that they almost seem to you animals 
with human faces, rather than men of our own race... . 
It is a bitter thing to say, but nothing can imbue these crea- 
tures with ideas of honesty, be it religion or their own interests 
or the thought of the harm which they have wrought; they 
are absolutely proof against even momentary good instincts; 
nothing touches them; nothing will stay their hand... . 
They have a different vision from ours. Their brain has le- 
sions which incapacitate it from transmitting certain messages. 
It responds only to the call of ignoble passions.” ! 

Nor can we doubt the accuracy of the description furnished 
us by a distinguished man of letters who spent many years 
of his life in a Siberian prison. Dostoieffsky, in his “House 
of the Dead,” has given to the world a literary masterpiece 
which contains our most complete account of the psychology 
of the criminal. The astonishing thing is the perfect resem- 
blance between the picture of the Slavic criminal confined in a 
Siberian prison and that of the Italian criminal described 
by Lombroso. “This strange family,” says Dostoieffsky, 
“had a general likeness so pronounced that it could be recog- 
nized at a glance. . . . All the convicts were morose, envious, 
frightfully vain, presumptuous, susceptible, and excessively 
ceremonious. . . . Vanity was always their salient quality. 
. . - Not the least sign of shame or of repentance.?.. . 
During many years I never remarked the least sign of repent- 
ance, not even the slightest uneasiness with regard to the crime 
committed. . . . Certainly vanity, evil examples, deceitful- 


1 Abbé Moreau, “Le monde des prisons ”’ (Paris, 1887). 
2 “House of the Dead,” Part I, c. u, pp. 13, 14. 


84 CRIMINOLOGY [$2 


ness, and false shame were responsible for much... . It 
would seem all the same, that during so many years I ought 
to have been able to notice some indication, even the most 
fugitive, of some regret, some moral suffering. I positively 
saw nothing of the kind. . . . In spite of different opinions, 
every one will acknowledge, that there are crimes which every- 
where, always, under no matter what legislation, are beyond 
discussion crimes, and should be regarded as such as long 
as man is man. It is only at the convict prison that I have 
heard related with a childish, unrestrained laugh, the strangest, 
most atrocious offenses. I shall never forget a certain parri- 
cide, formerly a nobleman and a public functionary. He had 
given great grief to his father — a true prodigal son. The old 
man endeavored in vain to restrain him by remonstrance on 
the fatal slope down which he was sliding. As he was loaded 
with debts, and his father was suspected of having, besides 
an estate, a sum of ready money, he killed him in order to enter 
more quickly into his inheritance. This crime was not dis- 
covered until a month afterwards. During all this time the 
murderer, who meanwhile had informed the police of his 
father’s disappearance, continued his debauches. At last, 
during his absence, the police discovered the old man’s 
corpse in a drain. The gray head was severed from the trunk, 
but replaced in its original position. The body was entirely 
dressed. Beneath, as if by derision, the assassin had placed a 
cushion. — The young man confessed nothing. He was de- 
graded, deprived of his nobiliary privileges, and condemned 
to twenty years’ hard labour. As long as I knew him I always 
found him to be careless of his position. He was the most 
light-minded, inconsiderate man that I ever met, although he 
was far from being a fool. I never observed in him any great 
tendency to cruelty. The other convicts despised him, not on 
account of his crime, of which there was never any question, 
but because he was without dignity. He sometimes spoke 
of his father. One day for instance, boasting of the hereditary 
good health of his family, he said: ‘My father, for example, 


§ 2] CRIMINAL ANOMALY 85 


until his death was never ill.’ — Animal insensibility carried 
to such a point is most remarkable — it is, indeed, phenomenal. 
There must have been in this case an organic defect in the man, 
some physical and moral monstrosity unknown hitherto to 
science, and not simply crime. I naturally did not believe 
in so atrocious a crime; but people of the same town as him- 
self, who knew all the details of his history, related it to me. 
The facts were so clear that it would have been madness 
not to accept them. The prisoners once heard him cry out 
during his sleep: ‘Hold him! hold him! Cut his head off, 
his head, his head!’ — Nearly all the convicts dreamed aloud, 
or were delirious in their sleep. Insults, words of slang, 
knives, hatchets, seemed constantly present in their dreams. 
“We are crushed ’ they would say; ‘we are without entrails; 
that is why we shriek in the night.’”’ ! 

This inability to feel remorse or repentance, and the exhibi- 
tion of vanity are characteristics well known to all observers. 
Lombroso has suggested that in these the criminal is akin to 
the savage. But there are some still more striking character- 
istics which complete the resemblance to the savage and at 
the same time are common to children. “On holidays the 
dandies of the prison put on their Sunday best. They were 
worth seeing as they strutted about their part of the barracks. 
The pleasure of feeling themselves well dressed amounted 
with them to childishness; indeed, in many things convicts 
are only children. Their fine clothes disappeared very soon, 
often the evening of the very day on which they had been 
bought. Their owners pledged them or sold them again for a 
trifle. — The feasts were generally held at fixed times. They 
coincided with religious festivals, or with the name’s day of the 
drunken convict. On getting up in the morning he would 
place a wax taper before the holy image, then he said his 
prayer, dressed, and ordered his dinner. He had bought 
beforehand meat, fish, and little patties; then he gorged like 
an ox, almost always alone. It was very rare to see a convict 

1 Op. cit., Part I, c. u, pp. 16, 18. 


86 CRIMINOLOGY [$2 


invite another convict to share his repast. At dinner the vodka 
was produced. The convict would suck it up like the sole of a 
boot, and then walk through the barracks swaggering and 
tottering. It was his desire to show all his companions that 
he was drunk, that he was carrying on, and thus obtain their 
particular esteem.” ! 

Further on, we find another childish characteristic, the 
impossibility of repressing a desire: “Reason has no power on 
people like Petroff unless they are spurred on by will. When 
they desire something there are no obstacles in their way. . . . 
People like him are born with one idea, which, without being 
aware of it, pursues them all their life. They wander until 
they meet with some object which apparently excites their 
desire, and then they do not mind risking their head. . . . 
More than once I was astonished to see that he (Petroff) 
was robbing me in spite of his affection for me; but he did so 
from time to time. Thus he stole my Bible, which I had asked 
him to carry to its place. He had only a few steps to go; 
but on his way he met with a purchaser, to whom he sold the 
book, at once spending the money he had received on vodka. 
Probably he felt that day a violent desire for drink, and when 
he desired something it was necessary that he should have it. A 
man like Petroff will assassinate any one for twenty-five kopecks, 
simply to get himself a pint of vodka. On any other occasion 
he will disdain hundreds and thousands of roubles. He told me 
the same evening of the theft he had committed, but without 
showing the least sign of repentance or confusion, in a per- 
fectly indifferent tone, as though he were speaking of an or- 
dinary incident. I endeavoured to reprove him as he deserved, 
for I regretted the loss of my Bible. He listened to me with- 
out hesitation very calmly. He agreed that the Bible was a 
very useful book, and sincerely regretted that I had it no 
longer; but he was not for one moment sorry, though he had 
stolen it. He looked at me with such assurance that I gave 
up scolding him. He bore my reproaches because he thought 

1 Op. cit., Part I, c. rv, pp. 46, 47. 


§ 2] CRIMINAL ANOMALY 87 


that I could not do otherwise than I was doing. He knew that 
he ought to be punished for such an action, and consequently 
thought I ought to abuse him for my own satisfaction, and to 
console myself for my loss. But in his inner heart he con- 
sidered that it was all nonsense, to which a serious man ought 
to be ashamed to descend.” 4 

The same utter carelessness as to their life and future: 

*A convict will marry, have children, live for five years in 

the same place, then all of a sudden he will disappear one 
fine morning, abandoning wife and children, to the stupefac- 
tion of his family and the whole neighborhood.” ? 

No Moral Anomaly, No Natural Crime. — Curiously 
enough, Dostoieffsky tells us of two or three convicts who 
were men of excellent character, of substantial qualities, 
devoted friends, incapable of hatred. . . . However, if we 
turn to the account of what brought them to the penitentiary, 
we shall find that their faults were not true crimes, in our 
sense of the word. He relates first the story of an “Old 
Believer” of Starodoub‘* who was entrusted with the convicts’ 
savings, which they found it necessary to conceal. This man, 
says our author, “was about sixty years old, thin, and getting 
very gray. ’ He excited my curiosity the first time I saw him, 
for he was not like any of the others; his look was so tranquil © 
and mild, and I always saw with pleasure his clear and limpid 
eyes, surrounded by a number of little wrinkles. I often talked 

1 Op. cit., Part I, c. v1, pp. 121, 122, 123. 

2 Op. cit., Part II, ec. v, p. 266. 

8 [Old Believers (‘“Starovyeri”) or Old Ritualists (“Starodbryad- 
tsi”): a sect of Russian dissenters. In the 1700s occurred the “‘ Raskol ” 
or Great Schism, as a result of the reforms introduced into the Orthodox 
Church under the Patriarch Nikon in the reign of Alexis, father of Peter 
the Great. The schismatics of that day later split into two main divisions: 
the Old Believers and the Priestless People. The Priestless People has 
since become subdivided into a great number of independent sects, while 
the Old Believers “‘ have remained a compact body little troubled by differ- 
ences of opinion . . . Of all the sects, the Old Ritualists stand nearest to 
the official church. They hold the same dogmas, practise the same rites, 
and differ only in trifling ceremonial matters, which few people consider 


essential.” (Wallace, “ Russia,” c. xvi.) — TRANSL.] 
4 Government of Tchernigoff. 


88 CRIMINOLOGY [$2 


with him, and rarely have I met with so kind, so benevolent 
a being. He had been consigned to hard labour for a serious 
crime. A certain number of the ‘Old Believers’ at Starodoub 
had been converted to the orthodox religion. The Govern- 
ment had done everything to encourage them and, at the same 
time, to convert the other dissenters. The old man and some 
other fanatics had resolved to ‘defend the faith.” When the 
orthodox church was being constructed in their town they set 
fire to the building. This offense had brought upon its author 
the sentence of deportation. This well-to-do shopkeeper — he 
was in trade — had left a wife and family whom he loved, 
and had gone off courageously into exile, believing in his 
blindness that he was ‘suffering for the faith.” — When one 
had lived some time by the side of this kind old man, one 
could not help asking the question, how could he have re- 
belled? I spoke to him several times about his faith. He 
gave up none of his convictions, but in his answers I never 
noticed the slightest hatred; and yet he had destroyed a 
church, and was far from denying it. In his view, the offense 
he had committed and his martyrdom were things to be proud 
of. — There were other ‘Old Believers’ among the convicts — 
Siberians for the most part — men of well-developed intelli- 
gence, and as cunning as all peasants. Dialecticians in their 
way, they followed blindly their law, and delighted in dis- 
cussing it. But they had great faults; they were haughty, 
proud, and very intolerant. The old man in no way resembled 
them. With full more belief in religious exposition than 
others of the same faith, he avoided all controversy. As he 
was of a gay and expansive disposition he often laughed — 
not with the coarse cynical laugh of the other convicts, but 
with a laugh of clearness and simplicity, in which there was 
something of the child, and which harmonised perfectly with 
his gray head. I may perhaps be in error, but it seems to me 
that a man may be known by his laugh alone. If the laugh 
of a man you are acquainted with inspires you with sympathy, 
be assured that he is an honest man. — The old man had 


§ 2] CRIMINAL ANOMALY 89 


acquired the respect of all the prisoners without exception; 
but he was not proud of it. The convicts called him grand- 
father, and he took no offense. I then understood what an 
influence he must have exercised on his co-religionists. — 
In spite of the firmness with which he supported the prison 
life, one felt that he was tormented by a profound, incurable 
melancholy. I slept in the same barrack with him. One 
night, towards three o’clock in the morning, I woke up; 
I heard a slow, stifling sob. The old man was sitting upon the 
stove . . . and was reading from his manuscript prayer-book. 
As he wept I heard him repeating: ‘Lord, do not forsake me. 
Master, strengthen me. My poor little children, my dear 
little children, we shall never see one another again.’ I 
cannot say how much this moved me.”’ ! 

Now, if we analyze the “crime” of this man, it becomes plain 
that Dostoieffsky has no right to be astonished at his good 
qualities. The case is simply one of a man who defended the 
religion of his country against the invasion of a new belief — 
an act which may be likened to a political crime. This 
“Old Believer” was merely a “révolté”’: he was not a criminal. 
“And yet he had destroyed a church!”’ exclaims our author. 
True, but without taking human life, without the slightest 
idea of doing harm to any one in the world. What elementary 
altruistic sentiment had he violated? Freedom of religious 
faith is not such a sentiment. It is a sentiment too highly 
refined, the product of an intellectual development which 
we can hardly expect to find in the average morality of a 
people. From our view-point, the burning of the church at 
Starodoub could not be a natural crime. It belongs to the 
class of facts which, though punishable by law, fall outside the 
boundaries of criminality which we have attempted to trace. 
And in this non-criminal incendiary, we find one of the rare 
exceptions noted by the writer to the moral degradation which 
surrounded him. 

A second exception appears in the saintly figure of one Ali, 

_ 1 Op. cit., Part I, c. rv, pp. 44, 45. 


90 CRIMINOLOGY [$2 


a Tartar of Daghestan, who had been sentenced for taking 
part in an act of brigandage. But the following were the 
circumstances of his offense: “One day his eldest brother . . . 
had ordered him to take his yataghan, to get on horseback, 
and follow him. The respect of the mountaineers for their 
elders is so great that young Ali did not dare to ask the object 
of the expedition. He probably knew nothing about it, nor 
did his brothers consider it necessary to tell him.’’! All he 
could do was to obey. He could not argue, could not question, 
because he had no right. Manifestly, this youth was not a 
criminal. Dostoieffsky, on the contrary, calls him “an excep- 
tional being’”’ — one of those “natures so spontaneously good 
and endowed by God with such great qualities that the idea 
of their getting perverted seems absurd.” ? 

There is finally the portrait of Akim Akimitch — a man of 
the utmost honesty, ready to serve, exact, of small intelligence, 
but “as argumentative and as particular about details as a 
German.” The author presents him as an original character 
of much simplicity. “When he quarreled with the convicts, 
he reproached them with being thieves, and exhorted them 
in all sincerity to steal no more.’ Again, “it was sufficient 
for him that there was injustice, to interfere in an affair which 
did not concern him.” Nor was this man a criminal. “He 
had served as a sub-lieutenant in the Caucasus. I made 
friends with him the first day, and he related to me his ‘affair.’ 
He had begun as a cadet in a Line regiment. After waiting 
some time tobeappointed to his commission as sub-lieutenant, 
he at last received it, and was sent into the mountains to com- 
mand a small fort. A small tributary prince in the neighbor- 
hood set fire to the fort, and made a night attack, which had 
no success. — Akimitch was very cunning, and pretended not 
to know that he was the author of the attack, which he 
attributed to some insurgents wandering about the mountains. 
After a month he invited the prince, in a friendly way, to 
come and see him. The prince arrived on horseback, without 

1 Op. cit., Part I, ¢c. v, p. 72. 2 Ibid., p. 73. 


ye ee CRIMINAL ANOMALY 91 


suspecting anything. Akimitch drew up his garrison in line 
of battle, and exposed to the soldiers the treason and villainy 
of his visitor. He reproached him with his conduct; proved 
to him that to set fire to the fort was a shameful crime; ex- 
plained to him minutely the duties of a tributary prince; 
and then, by way of peroration to his harangue, had him shot. 
He at once informed his superior officers of this execution, 
with all the details necessary. Thereupon Akimitch was 
brought to trial. He appeared before a court-martial, and 
was condemned to death; but his sentence was commuted, 
and he was sent to Siberia as a convict of the second class — 
condemned, that is to say, to twelve years hard labour and 
imprisonment in a fortress. He admitted willingly that he had 
acted illegally, and that the prince ought to have been tried 
in a civil court, and not by a court-martial. Nevertheless, 
he could not understand that his action was a crime. — ‘He 
had burned my fort; what was I to do? Was I to thank 
him for it? ’ he answered to my objections.” ! 

Akimitch was right; he had exercised the law of war in 
punishing treason with death; the execution was deserved. 
_ But his ignorance made him believe that he was authorized 
to hold a council of war, to try and regularly condemn a 
brigand. A council of war convened according to law would 
probably have done the same thing which he, unable to under- 
stand the limits of his authority, had done illegally, and the 
minor prince would have met precisely the same fate. 

If I am not mistaken, these three are the only examples of 
good and honest men whom Dostoieffsky encountered in his 
years of imprisonment — the only ones who did not inspire 
him with disgust, who became his friends, who had nothing of 
the cynicism or the conspicuous immorality of the rest. 
They had none of the characteristics of criminals, simply 
because they were not criminals. They had merely disobeyed 
the law without being in anywise guilty of that which, from 
our standpoint, constitutes true crime. We therefore see 

1 Op. cit., Part I, c. m1, pp. 33, 34. 


92 CRIMINOLOGY [$3 


how these exceptions confirm the rule and what support they 
give to our views in relation to natural crime and the criminal 


type. 


§ 3. Hereditary Transmission of Criminal Propensities 


We shall not stop to consider symptoms of a psycho-psychi- 
cal order, such as obtuseness of the general sensibility, anal- 
gesia, and imperfect vascular reaction. Study of this phase 
of our subject is still in its beginnings, and but few observa- 
tions have been made. Although such observations have 
already yielded satisfactory results, it will be necessary to 
await further investigation before we can draw on them in 
support of our theory. It is, however, to be noted that a lower 
degree of sensibility to physical pain seems to be demonstrated 
by the readiness with which prisoners submit to the operation 
of tattooing. 

Evidentiary Data. — Passing then to heredity, we find in 
this a fact established by unimpeachable evidence. The 
world has been made acquainted with some startling gene- 
alogies — that of Lemaire or of Chrétien for example, or that 
of the “Juke” family. In the last, the descendants of one 
Max, a drunkard, included in the course of seventy-five 
years, 200 murderers and thieves, 288 diseased persons, and 
90 harlots. 

Out of 109 convicts, Thomson found 50 who were related 
to each other, and among these 8 members of a single family 
descended from a convicted recidivist. Virgilio, out of 266 
criminals, found 195 afflicted with diseases common in degen- 
erate families, such as scrofula, caries, necrosis, and phthisis, 
mostly hereditary. But what is more important in the latter’s 
observations is the fact of transmission of crime by heredity, 
either direct or collateral, in the case of 32.24% of the con- 
victs examined. 

If we take into consideration the number of cases which must 
lie outside our knowledge, either because the facts have been 
forgotten or else because of the difficulties attending investiga- 


§ 3] CRIMINAL ANOMALY 93 


tion in the matter of collateral heredity and the impossibility 
which nearly always exists of carrying such investigations back 
of the grandfather, these figures ought sufficiently to prove the 
law of the hereditary transmission of crime. But this is not 
all. The author last cited has shown that out of 48 recidivists 
(who most often are true criminals), 42 exhibited character- 
istics of congenital degeneracy. 

Some very curious observations have been contributed by 
Marro. Among non-criminals he found 24%, among criminals, 
32%, children of parents advanced in years. In this respect, 
murderers viewed apart, attained the remarkable figure of 
52%, homicidal criminals in general showed 40%, swindlers, 
37%, while thieves and authors of indecent offenses (“atten- 
tats aux moeurs”’) fell below the average. He attributes this 
disproportionate result to the psychic changes of old age, in- 
creasing egoism, the spirit of calculation, avarice, all of which 
are necessarily reflected in the children, predisposing them to 
evil propensities. This is why the percentage is so high in the 
ease of murderers and homicidal criminals— who are deficient 
in the affective sentiments, —and in that of swindlers— whose 
operations require circumspection and craft, — while theft, 
on the other hand, shows much lower figures, because this vice 
is derived from the inclination for pleasure, for idleness, for 
debauch — characteristics of the age at which the passions 
dominate. 

The same author found among criminals an average of 41% 
who were sons of drunkards, as opposed to 16% among non- 
criminals. The criminals showed 16% whose brothers had 
undergone criminal conviction, the non-criminals but 1%. 
Future investigation in this direction, we may be sure, will 
yield proof of an increasingly convincing character. It is 
difficult to see how it can be otherwise, if we stop to think 
what a common thing is the transmission of degenerative 
characteristics. Moreover, even the opponents of positivism 
are forced to recognize that “heredity exhibits itself more 
actively according as the phenomena are more closely related 


94 CRIMINOLOGY [$3 


to the organism, that it.is stronger in the reflex acts, in the 
case of unconscious cerebration, in the impressions, ‘the 
instincts, decreasing and becoming vaguer in the phenomena 
of higher sensibility.” ! Within these limitations, criminal 
heredity finds its well-defined place. If we are right in suppos- 
ing crime to be a want of that part of the moral sense which is 
the least refined, the least pure, the least delicate, the most akin 
to the organism, then the propensity or predisposition to crime 
must be hereditarily transmissible like all other phenomena of 
the same description. It is not a question of a phenomenon 
of the higher sensibility, but of one depending on the common- 
est sort of ‘moral sensibility, a sensibility which is necessarily 
-absent in the children of those who are destitute of it. If 
exceptions can be imagined to a biologic law which embraces 
all mankind, it is most assuredly not here that one can find 
them. 

Antiquity, which did not possess a science of statistics, 
had nevertheless the intuition of the great natural laws. 
Wiser than the present day, it knew how to utilize this intui- 
tion. Whole families were declared impure, and proscribed. 
This subject calls for an observation which may appear some- 
what singular. Cases will be remembered of Biblical curses 
extending even to the fifth generation. Modern science 
justifies this limitation, since it teaches that a marked char- 
acter for good or evil does not persist beyond the fifth genera- 
tion. It is this fact, moreover, which accounts in part for the 
decay of all aristocracies.? 

Recidivism an Effect of Heredity. — In view of the congenital 
and hereditary nature of criminal propensities, which appears 
thus established, we need not wonder at the proportions at- 
tained by recidivism. The correctionalist school credulously 
attributed the existence of recidivism to the bad condition 
of the prisons and the defective organization of the peniten- 


1 Caro, “‘Essais de psychologie sociale” (Revue de Deux Mondes, 15 April, 
1883). 
2 Ribot, ““L’hérédité psychologique”’ (Paris, F. Alcan, 1882). 


§ 4] CRIMINAL ANOMALY 95 


tiary system. Subsequent experience has shown the error of 
this view: improvement of the system has had scarcely any 
effect in the diminution of recidivists. Recidivism is the rule, 
reform of the criminal the exception. The official figures 
do not give us the whole truth, for a number of reasons. 
For one thing, the professional offender has become more ex- 
pert in keeping out of the clutches of the police. Then too, . 
when arrested he is very often able to conceal his name. 
Moreover, the recidivism of the codes is much narrower than 
recidivism proper. It is limited to particular cases, sometimes 
to special recidivism, and again to recidivism occurring after 
a sentence of not less than one year in prison, or after a 
criminal as distinguished from a correctional conviction.! 
And yet, in spite of these limitations, legal recidivism reaches 
a proportion of 46% in France, 49% in Belgium, and 45% 
in Austria. “It is the same individuals,” as one author 
has justly observed, “who always commit the same crimes.” 


§ 4. The Distinction between Moral Anomaly and 
Pathologic Anomaly 

Casual Offender Non-existent. — Few scientists today abso- 
lutely deny the existence of innate criminal impulses. There 
are many, however, who regard such propensities as reducible 
to a limited number of pathologic cases. For them, the great 
majority of offenders is composed of normal men who, suffer- 
ing from a neglected moral education, have been impelled to 
crime by external causes. Without doubt, external causes 
such as tradition, prejudices, bad examples, climate, alcoholic 
liquors, and the like are not without an important influence. 
But in our opinion, there is always present in the instincts 
of the true criminal, a specific element which is congenital 
or inherited, or else acquired in early infancy and become 
inseparable from his psychic organism. There is no such thing 
as the casual offender, — if by the use of this term we grant 


1 [J. e., conviction for a “crime” as distinguished from a “délit.” See 
ante, p. 59, note 1. — Transt.] 


96 CRIMINOLOGY [§ 4 


the possibility of a morally well-organized man committing 
a crime solely by the force of external circumstances. If, out 
of a hundred persons who are subjected to the same conditions, 
but one is thereby actuated to commit crime, it must be ad- 
mitted that this individual has felt differently from the others 
the influence of these conditions, — that he possesses some- 
thing which the others are without, a peculiar diathesis or 
manner of being. This is a conclusive answer to the argument 
which attributes certain kinds of crime to the misery of the 
poorer classes. For these classes, notwithstanding the uni- 
form prevalence of misery, are by no means composed of crimi- 
nals; — criminals, on the contrary, represent there but a small 
minority. Perhaps, as has been often said, the conditions 
surrounding these classes are the bouillon most favorable to 
the development of the microbe, but the microbe, that is to 
say, the criminal, is not their necessary product. In a different 
environment his criminality would probably remain latent, 
but would nevertheless exist. Criminals therefore cannot be 
separated into the two distinct classes of normal and abnormal 
beings; they can be classed only according to the greater 
or less degree of their anomaly. In born or instinctive crim- 
inals and criminals who are termed casual or occasional, 
there is an equal lack of repugnance to crime. 

The Question Stated; Certain Objections Considered. — It 
now becomes important to distinguish between, on the one 
hand, certain pathologic conditions associated with criminal 
impulses, such as imbecility, insanity, hysteria, and epilepsy — 
conditions which may be either congenital or acquired — 
and, on the other, the exclusively moral anomaly which is 
characterized by perversity or the absence of the elementary 
moral instincts, and which is not a disease. 

On the subject of this distinction many doubts have 
arisen. Arrayed against us are, in the first place, those writers 
who decline to admit that the will can be the slave of propen- 
sities and instincts, who are unable to understand how the 
human soul can be led to evil through the peculiarity of the 


- 


§ 4] CRIMINAL ANOMALY 97 


individual organization, unless the intelligence is affected 
or some disease interferes with the subjection of the acts to 
the will. Discussion of the question of free will would be 
here out of place. Nor is it at all necessary, since, suffice 
it to say, a correct understanding of our views will not attrib- 
ute to us the idea that every criminal propensity necessarily 
impels to action. We believe, on the contrary, that the mani- 
festation of such propensities can be repressed by the favorable 
concurrence of a multitude of external circumstances, even 
in the case of individuals whose perversity is innate. Whether 
the will is the resultant of many forces or whether it is an initial 
psychic movement, it is certain that the criminal impulses 
can always be paralyzed by an external motive, such as 
terror of the death penalty or the fear of losing advantages 
greater than those to be gained by the crime. The absence 
of the moral sense, it must be added, is merely the favorable 
condition which enables the crime to be accomplished at a 
given moment. Many persons who suffer from a predisposi- 
tion of this sort never become criminals, simply because they 
can satisfy their greatest desires without in the slightest 
degree injuring others. It is thus that individuals with latent 
criminal instincts pass for honest men all their lives: the 
moment has never arrived at which crime would be useful to 
them. The merit of their regular conduct is not then to be 
ascribed to their character, but to the situation in which it 
has been their good fortune to find themselves. 

We turn to an objection of a diametrically opposite nature. 
By many authors criminal anomaly is classed as a form of 
alienation under the name of “moral insanity.” In our opin- 
ion, this term is erroneous and should be expunged from the 
scientific vocabulary. In the first place, its use engenders 
many misunderstandings. In fact, it is because of this term 
that the positive school has been criticized for making crimi- 
nality a chapter of insanity. Again, the word “insanity”’ is 
synonymous with “mental alienation.’’ Now, although reason 
and sentiment both reside in the nervous system, it cannot 


98 CRIMINOLOGY [$ 4 


be disputed that these are activities of a very different nature, 
and that it is possible for one of them — the faculty of idea- 
tion — to be perfectly regular, although the other — the 
faculty of emotion— may be abnormal. And finally, the 
word “insanity ” or “ alienation ”’ implies the idea of disease, 
since the non-pathologic insanity of Despine is no longer ad- 
mitted. The term, therefore, is wholly inapplicable, since our 
instinctive criminals are not diseased persons. It will be in 
place to give some attention to this point. 

Criminal Instinct not Disease. — When the neh s 
anomaly consists only in a moral deviation, when it is re- 
vealed only by maliciousness, cruelty, or heartlessness, with- 
out the least disturbance of the faculties of ideation or any 
evidence of a different kind of neurosis, such as hysteria or 
epilepsy, how is it possible to say that a pathologic condition 
is present? The only way in which we can here predicate a 
pathologic condition is by regarding the words “disease” 
and “anomaly” as identical in meaning. But if we did, there 
would no longer be any difference between a physiologic 
condition and a pathologic condition, since every atypic 
variation, every irregularity of the body, every eccentricity 
of character, every peculiarity of temperament would be a 
morbid form. . . . Inasmuch as there are almost no individ- 
uals who do not exhibit some physical or moral peculiarity, 
the condition of health would become impossible to find: 
the word would lose all practical significance. Yet there is a 
condition of physical health and a condition of mental health. 
There is again an intermediate zone between each of these 
conditions and that of disease. Hence it is, that although we 
have never been furnished with an adequate definition of 
alienation, we can none the less, in the particular case, dis- 
tinguish the lunatic from the man of sane mind.! 

1 Taylor, “Principles and Practice of Medical Jurisprudence,” 3d ed., c. 89. 

Fioretti, in his interesting monograph “Genio e follia”” (Naples, 1902), 
takes a resolute stand in favor of this idea. “To get the notion what a lunatic 


is,” says he, “it is necessary to resort, not to the physician, but to the common 
and vulgar opinion which regards certain individuals as lunatics and others 


§ 4] CRIMINAL ANOMALY 99 


The distinction between anomaly and disease is by no means 
new. For example, the Digest with reference to rescission of 
the sale of a slave, distinguishes “vitium’”’ from “‘morbus”’: 
“Utputa si quis balbus sit, nam hunc vitiosum magis esse 
quam morbosum.” The mute, adds Sabinus, is diseased, but 
not he who speaks difficultly and with little intelligibility. 
“He who lacksatooth,”’ says Paulus, “is not a diseased man.””! 
We may say, likewise, that he who is destitute of certain in- 
stincts is an abnormal man (“vitiosus”’), — but not a diseased 
man (“morbosus”’). 

Disease a Deviation from the Species — Moral Anomaly 
from the Civilized Type. — It may be urged that, everything 
considered, to quote from an Italian alienist, “disease is 
nothing but life under abnormal conditions, and that from 
this point of view there is no absolute antithesis between 
health and disease.” 2 But what warrant has science for an- 
nulling the meaning of words which for ages man has deemed 
indispensable? The word “disease” or “infirmity” always sig- 
nifies something which tends to the destruction of the organism 
or the part thereof which is attacked. If there is no process of 
destruction, there is a process of cure — never a condition of 
stability as is the case in many kinds of anomaly. But even 
supposing that the meaning of the word could be extended 
so as to include every abnormal condition of life, our position 
remains unchanged. To know what is meant by abnormal 


as not. The lunatic is he who is without the aptitudes necessary to the social 
coexistence. Insanity, like criminality, is a form of inadaptability of the 
individual to the social life. . . . Really, it is a strange thing that we should 
seek from the physician the notion and definition of insanity, when these 
can only be given by the social environment. . . . The fact that the notion of 
insanity has always varied shows how true this is. . . . In my opinion, it is a 
serious error to declare a man insane, simply because an objective diagnosis 
discloses the presence of certain phenomena. . . . No one could be sure of 
escaping this diagnosis. . . . The criminal, like the lunatic, is an abnormal. 
In this lies the only resemblance between them. It is just as if we would 
say that a sphere and a triangle are alike, because they both differ from a 
straight line.” 

1 Dig., Lib. XXI, Tit. I. See Fioretti, ““Polemica in difesa della scuola 
criminale positiva,” p. 254 (1886). 

* Virgilio, “La. fisiologia e la patologia della mente ” (Caserta, 1883). 


100 CRIMINOLOGY [§ 4 


conditions, we must first be certain what are the normal 
conditions of life. Do we mean the normal life conditions of a 
people, a race, or of mankind in general? Plainly, the ex- 
pressions “physiologic conditions” and “pathologic con- 
ditions” must have reference to mankind as a whole, independ- 
ently of race variations. Woolly hair, prognathism, and flat 
noses are anomalies in our race, to be sure, but they cannot 
be assigned a pathologic character, for the obvious reason 
that they are not deviations from the human type. Indeed, 
in certain inferior races, they are race characteristics. ‘They 
do not disturb or change the organic functions in the slightest 
degree. Why should not the same thing be true of the psychic 
variations? Moral insensibility, lack of prevision, cruelty, 
are not today characteristics of our race, but in other races 
they are very common. Consequently they do not constitute 
anomaly in relation to the “genus homo”: their anomaly 
exists only in relation to the perfected type represented by civi- 
lized peoples. To put this distinction in a clearer light, let 
us contrast the anomaly of innate perversity with other spe- 
cies of psychic anomaly, such as want of the faculty of co- 
ordinating ideas, lack of memory, aphasia, or the inability 
of the psychic process to respond to any external excitation. 
In these we have true cases of disease, because they represent 
anomalies in relation to the species. The faculty of ideation 
which is affected in such instances, is not the heritage of a 
particular race, nor does it make its first appearance at any 
given stage of moral evolution: its existence is coeval with 
the existence of mankind. What a difference is presented 
by the case of instinctive perversity or absence of the moral 
sense! Here no organic function is dissolved or disturbed; 
the physiologic conditions necessary to the life of the species 
remain the same. The only result is the incompatibility 
of the subject with his environment, provided that this en- 
vironment consists of an aggregation of families, for so long 
as it consists of but a single family, the egoistic sentiments 


suffice. 


§ 4] CRIMINAL ANOMALY 101 


And still, for this incompatibility to exist, the aggregation 
must be to some extent removed from the savage state. It 
will be recollected that there are today, or have been within 
recent times, tribes in which the most unbridled cruelty and 
lust appear almost normal. The Maoris and Fijians, who 
killed for the pleasure of killing, were destitute of the instinct 
of pity, or rather, this instinct did not cross the limits of their 
families. Yet they were not diseased men, any more than is 
the African negro who steals whenever occasion presents. 
It is very clear that neither anatomic characteristics, which 
are anomalies only in relation to race, nor the signs of an 
arrested psychic development common to some savage tribes 
and to the typical criminal, can cause us to look upon the latter 
as the victim of disease, if the former, with the same physical 
and moral deficiencies, are to be regarded as men in perfect 
health. 

It counts for little in this regard that the altruistic senti- 
ments today prevail nearly everywhere. There was a time 
when they existed only in an embryonic state, when they 
searcely transcended the boundaries of the family, rarely 
that of the tribe. But if the men of these remote times were 
in sound health, why should it be otherwise with the criminals 
of our own day, who resemble these savage men and, by 
some mysterious atavism perhaps, have inherited from their 
prehistoric ancestors the characteristics which now consti- 
tute moral anomaly? To regard as disease the absence of 
the moral sense would necessarily lead to this strange result: 
that upon the degree of social advancement would depend the 
degree of seriousness and even the eventual disappearance of 
one and the same disease. So that under precisely the same 
state of facts, a man might be gravely ill in the civilized 
countries, of a rather doubtful condition of health among 
half savage peoples, and wholly free from disease in the 
Fiji Islands, New Zealand, and Dahomey.' 


* Drago (“Los hombres de presa,” pp. 75, 76, — Buenos Ayres, 1888) 
thinks this suggestion somewhat misleading. Meeting me on my own ground, 


102 CRIMINOLOGY [$4 


This, of course, is absurd. When we speak of pathologic 
conditions, we do not inquire if the subject is modern, or if 
he belongs to the stone age, or whether he is a Malay, a Poly- 
nesian, or an Anglo-Saxon. Irrespective of period or race, 
the essential conditions of life remain the same. 

It therefore follows that the existence of non-pathologic 
anomalies, and, among these, the absence of the moral sense, 
must be taken as established. In our opinion, however, as 
before suggested, the expression “moral insanity” is utterly 
indefensible. Without doubt, there are instances of extreme 
perversity of a true pathologic character, but in these cases 
the perversity is nothing more than the most prominent symp- 
tom of some serious neurosis, such as epilepsy or hysteria, 
or of some form of alienation, such as melancholia, progressive 
paralysis, or idiocy. On the other hand, when no derangement 
of the physiologic functions can be detected, the case is not 
one of disease, however great may be the incompatibility 
of the individual with the social environment. 

Different Effect of External Impressions in Insanity and 
Moral Anomaly. — The following considerations, it seems to 
me, are completely decisive of the question under discussion: 
In the lunatic or idiot, perceptions of the external world 
produce exaggerated impressions; they give rise to a psychic 
process which is not in accord with the external cause; hence, 
there follows an incoherence between this cause and the reac- 
tion of the subject. In this fact lies the explanation of the 
many atrocious murders committed solely to get rid of a dis- 
agreeable sensation, — of the annoyance caused by the vic- 
tim’s presence. One Grandi, a semi-idiot, disturbed by the 
noise of his neighbors’ children playing in front of his workshop, 
he objects that a native of Tierra del Fuego would consider in sound health a 
civilized man afflicted with aphasia, that is to say, unable to articulate words 
distinctly, because the Fuegian language is composed of inarticulate sounds. 
My answer would be that if this is true of the Fuegian language, it has not 
been shown that the natives are incapable of learning to articulate the words 
of another language —a task which would be impossible for a European 


suffering from aphasia. Dellepiane (“Las causas del delito,’’ — Buenos 
Ayres, 1892) adopts my views on this point. 


§ 4] CRIMINAL ANOMALY 103 


enticed them one by one into the premises, put them under 
lock and key, and, after night-fall, buried them alive — to 
the number of ten. He believed that he thus would be en- 
abled to work in peace. This was his sole motive. Edgar 
Allan Poe’s madman in “The Tell-tale Heart” takes the 
life of the old man, so that he may not have to bear the sight 
of his victim’s “vulture eye.” In other cases, a pathologic 
pleasure is the determining motive, as in that of the lunatic 
cited by Maudsley, who dismembered a little girl, entering 
in a diary which he kept: “Killed a little girl: it was fine and 
hot.” ! 

In the born criminal, on the other hand, the psychic process 
is in accord with the impressions of the external world. If 
the motive is revenge, there is always a real wrong or injury. 
If it is the hope of an advantage, the advantage contemplated 
is such as would be a real advantage in the eyes of any other 
person. If pleasure, it is a pleasure in no way abnormal. It 
is not the end in itself, but the criminal method employed to 
encompass it, which reveals the moral anomaly. There are, 
it is true, certain crimes, which the absence of the moral sense 
alone does not always suffice to explain. This absence, 
however, is sometimes accompanied by an exaggerated self- 
esteem, as a result of which a fancied or trivial grievance is 
more keenly felt than would otherwise be the case. Thus, 
one T, becoming enraged because his domestic had left his 
service, lay in wait for the latter and shot him dead. The vic- 
tim’s conduct would have been merely a trivial vexation for 
another, but for this man it was an affront which could only 
be requited with the offender’s life. In such cases it is said 
that there is a disproportion between cause and effect. This 
expression is philosophically absurd. Proportion must always 
exist. But the cause here is not alone that which we suppose 
it to be, for this would be insufficient. There is further present 
the absence of moral sense, coupled with exaggerated self- 
esteem, immoderate vanity, and extreme susceptibility — 

1 Maudsley, “Responsibility in Mental Disease,” c. v. 


104 CRIMINOLOGY [$4 


characteristics which, as has been seen, are very frequently 
found among criminals. 

Tarde, accepting my views as to the difference between the 
so-called “moral insanity ’ and criminal instinct —a difference 
which he considers of capital importance, rounds them out in 
this notable passage: “For the lunatic himself, crime is indeed, 
if we choose so to call it, a means of pleasure, since as Maudsley 
observes, the accomplishment of a homicide procures for the 
agent who has acted through an irresistible criminal impulse, 
a true solacing effect. But it is the abnormal nature of this 
pleasure and the fact that no other is sought in committing the 
crime, which distinguish the lunatic from the criminal. The 
criminal, it is true, also shows certain anomalies of the affec- 
tive sentiments (“‘anomalies affectives’’), but they consist 
in his being more or less incapable of certain sympathetic 
sufferings, of certain repugnances which in the honest man 
are sufficiently strong to restrain him on the brink of certain 
acts. Another thing is the presence of a morbid attraction, 
which impels him to action even where there is no provocation 
from without. Still another is the absence of any internal 
repulsion which could prevent him from yielding to external 
temptations.” 

Criminal anomaly is therefore a deviation from the type 
of civilized man; in this it differs from disease, which is an 
anomaly in relation to the human species as a whole, and not in 
relation to the particular condition of moral superiority — 
a condition which, moreover, is itself the result of a series of 
imperceptible organic individual modifications. 

The Death Penalty Justified. — In thus granting the possi- 
bility of a somatic substratum in anomaly as well as in disease, 
we by no means convert the question into one of words. The 
difference means much from the standpoint of penal science; 
it furnishes the possibility of justifying the death penalty. 
If criminals were to be regarded as suffering beings who, by 
that very fact, had the right to our sympathy or even to our 
pity, — their crimes being but an accident of disease and not 


§ 5] CRIMINAL ANOMALY 105 


the effect of their character or temperament, — the infliction 
of the death penalty would wear the aspect of intolerable 
cruelty. In the lines of Shakespeare: 
“Hamlet is of the faction that is wrong’d; 
His madness is poor Hamlet’s enemy.” ! 
The character, the temperament, on the contrary, go to make 
up the moral physiognomy of the individual: they constitute 
the Ego. If the criminal lacks moral sense, this defect is not 
for him a cause of suffering; it only renders him an inferior 
being from the social standpoint. It is for this reason that 
we have deemed it important to lay stress on the danger 
attending the use of the term “moral insanity” and to em- 
phasize the clear-cut distinction which exists between the 
criminal destitute of moral sense and the insane criminal. 


§ 5. Hypotheses as to the Source of Moral Anomaly 


Since, therefore, the existence of criminal anomaly is no 
longer open to doubt, what is the explanation of this phe- 
nomenon? It cannot always be attributed to direct heredity. 
Are we then to regard it as a case of atavism or a case of 
degeneracy? 

The Theory of Atavism. — Because of the marked resem- 
blance between the typical criminal and the savage considered 
as a representative of prehistoric man, Lombroso held to the 
theory of atavism. Certain characteristics of prehistoric 
skulls found upon comparison with the skulls of criminals 
confirmed him in this view. In addition, his psychologic 
studies of infancy, — which reproduces in miniature the first 
stages of human development, — resulted in the discov- 
ery of many characteristics also observable in savages and 

In his later writings the same author contended that epilepsy 
is always to be found in the born criminal. This theory 
I shall not stop to discuss since the fact is far from being 


.1 “Hamlet,” Act V, Scene II, 249, 250. 


106 CRIMINOLOGY [$5 


established. Moreover, it is flatly contradictory of the theory 
of atavism, despite Lombroso’s efforts to reconcile the two 
theories. It seems hardly possible to conceive our first parents 
as unhappy epileptics. . 

On the contrary, although we do not know prehistoric man, 
it may easily be believed that he could not have possessed 
altruistic instincts. The almost isolated life which he led 
with his progeny, — although the period in which such life 
was led by man could not have been of long duration, — 
renders this highly probable. Such a moral state, it is impor- 
tant to notice, depends solely on the absence of the conditions 
of social life. We see altruism begin to develop as soon as a 
tribe is formed; we see it later extending to the whole of a 
people or nation. In the criminal, on the other hand, the 
altruistic sentiments do not exist, in spite of the social environ- 
ment into which he is born. 

If, then, we take as a term of comparison, not the man of 
the forests and marshes whose sole society was that of his 
mate and offspring, but the member of the oldest social 
aggregations, we are compelled to agree with Tarde “that the 
baseness, cruelty, heartlessness, cowardice, sloth, and bad 
faith observable among criminals cannot proceed from the 
majority of our common ancestors, since they are incompat- 
ible with the age-long existence of a well-ordered society.” ! 

Féré’s observation is equally in point. He suggests “that 
the traces of degeneracy such as vesanic or neuropathic 
manifestations, scrofula, etc., so often met with in criminals, 
have nothing to do with atavism; being incompatible with a 
regular process of generation, they even seem to exclude the 
idea of atavism.” ? 

Still, facts are not lacking which seem to lend justification 
to Lombroso’s earlier theory. In the first place, there is the 
matter of anatomic characteristics. Among these, the fact 


1 Tarde, “‘L’atavisme moral” (Archives d’anthropologie criminelle, 15 
May, 1889). 
2 Féré, ““Dégénerescence et criminalité,” p. 67 (Paris, F. Alcan, 1888). 


§ 5] CRIMINAL ANOMALY 107 


most worthy of attention is the extreme prognathism which 
characterizes certain skulls belonging to the ages of the mam- 
moth and the reindeer. But these few facts, as Topinard 
points out, afford no basis for any conclusion. The proofs 
are insufficient. And yet there can be no doubt of the regres- 
sive character of prognathism, in view of the fact that elonga- 
tion and prominence of the jaws are the rule in the black races 
of Africa and Oceanica, and exceptional in the races of Europe.! 
Moreover, “using the word in its ordinary and current mean- 
ing, we may say that the white races are never prognathous, 
while the yellow and black races are prognathous in varying 
degrees.” * And it is further to be noted that the peoples 
who are classed among the most degenerate of mankind, such 
as the Hottentots (Bushmen and Namas) attain the highest 
degree of prognathism known “‘in all mankind.” ? 

It would seem therefore reasonable to suppose that our first 
ancestors were still more prognathous than the savages. And 
granting that the skulls of Canstadt and Cro-Magnon ‘+ 
may have been exceptions in the race contemporary with the 
mammoth, it is fair to assume, as does Topinard,® that they 
were the last representatives of a race, then almost extinct, 
which dated back to the pliocene or miocene age. “The same 
thing unquestionably accounts for the extraordinary progna- 
thism of the celebrated Namas of the Museum. . . . They 
were, in all probability, the survivors of an early African 
race, long since extinct.” 

Aside from the matter of anatomic characteristics, prehis- 
toric man must have had many points of resemblance to the 


1 Topinard, “ Anthropologie,” pp. 451, 452 (3d ed., Paris, 1879). 

2 Tbid., p. 284. 3 Thid., p. 390. 

4 [Canstadt is a village in the neighborhood of Stuttgart. The skull to 
which it gives the name is a portion of a cranial vault found in 1700, during the 
excavation of a Roman “oppidum” by Duke Eberhard Ludwig of Wurtem- 
berg, and brought to the attention of the scientific world by Jaeger in 1835. 
(Quatrefages, “The Human Species,” p. 302.) The Cro-Magnon skulls are 
“the numerous remains found by Lartet, Christy and others in the cave of 
that name at Eyzies, Tayac district, Périgord (Dordogne).” (Keane, “Eth- 
nology,” p. 149). — Transt.] 

5 Topinard, op. cit., pp. 289, 290. 


108 CRIMINOLOGY [$5 


modern savage. But a distinction is here necessary. There 
are hundreds of different savage races of varying degrees of 
social advancement. Unquestionably, none of these races 
is a perfect exemplar of prehistoric man. Bagehot has thrown 
a valuable light on this point. Although, he says, it may 
be well believed that in certain respects prehistoric man 
“was identical with a modern savage, in another respect 
there is equal or greater reason to suppose that he was most 
unlike a modern savage. A modern savage is anything but the 
simple being which philosophers of the eighteenth century 
imagined him to be; on the contrary, his life is twisted into a 
thousand curious habits; his reason is darkened by a thou- 
sand strange prejudices; his feelings are frightened by a 
thousand cruel superstitions.”” !_ These early ancestors of ours 
“were ‘savages without the fixed habits of savages’; that 
is, like savages, they had strong passions and weak reason ; 
like savages, they preferred short spasms of greedy pleasure 
to mild and equable enjoyment; like savages, they could not; 
postpone the present to the future; like savages, their in- 
grained sense of morality was, to say the best of it, rudiment- 
ary and defective.” 

Are not these last the very characteristics which our analy- 
sis disclosed in criminals? But we find other traits in which the 
two have nothing in common. Obviously, prehistoric man 
must have had physical and moral strength. Only the posses- 
sion of courage could have enabled him to combat ferocious 
beasts, naked as he was and without arms; only a love of 
labor could have led him to force a way through the trackless 
forest, to build the first rude houses, to protect his offspring 
against a variety of perils. “Often,” says Tarde, “he must 
have been a hero.”’ Without such qualities the human species 
would have been at a stand-still. It would have remained in 
that state in which certain exceptionally backward peoples 
are found today: the Malays of the islands, for example, 


1 Bagehot, “Physics and Politics,” No. IV: “ Nation-making.” 
2 Ibid. 


§ 5] CRIMINAL ANOMALY 109 


whose huts are built upon posts set in the middle of 
lakes, and whose only method of traversing the virgin 
forests which surround them is by leaping like apes from 
branch to branch. 

The resemblances to be noted between the instincts of the 
savage and the criminal, or between the instincts of the 
modern savage and the primitive savage, fall very short of 
establishing their identity. For that matter, certain points 
of resemblance, such as egoism and the lack of moral sense, 
appear in the characteristics of criminals and children. But 
this is hardly a reason for saying that children are criminals 
in miniature: there is here the wide difference which exists 
between a development not yet commenced and a develop- 
ment which a defective moral organization has rendered 
impossible. The only conclusion which we are justified in 
forming is that criminals have regressive characteristics — 
characteristics which indicate a degree of advancement lower 
than that of their neighbors. There is nothing astonishing in 
the resemblance between criminals and the inferior and primi- 
tive races of mankind. It is certain that criminals have the 
primitive instincts— the instincts of the predatory life, 
coupled with total lack of the sentiment of justice and the 
absence of any inward restraint upon the passions. What 
wonder, then, that we find such instincts so combined with 
physical and especially physiognomic characteristics which 
recall those of the most barbarous races, as to result in a 
correspondence of the moral and physical character. 

Moreover, many criminals exhibit traits which cannot be 
attributed to atavism, and which are really atypic. For this 
reason, I am constrained to agree with that part of Tarde’s 
conclusions in which he says that the criminal is “a monster 
who, like many other monsters, exhibits characteristics of 
regression to the past of the race or species. But he combines 
them in a different way, and we must take care not to judge 
our ancestors by this example.” 

The Theory of Moral Degeneracy. — The simplest explana- 


110 CRIMINOLOGY [$5 


tion is undoubtedly that of moral degeneracy, as the effect 
of a retrogressive selection (“sélection 4 rebours’’), which 
has caused the man to lose the better qualities which he had 
acquired by secular evolution, and has led him back to the 
same degree of inferiority whence he had slowly risen. This 
retrogressive selection is due to the mating of the weakest 
and most unfit, of those who have become brutalized by 
alcohol or abased by extreme misery against which their apathy 
has prevented them from struggling. Thus are formed demor- 
alized and outcast families whose interbreeding in time pro- 
duces a true race of inferior quality. 

“The degenerate, whether moral or physical,” writes 
Tarde, “is in general the result of heredity. We need but run 
back one or two steps in the line of descent to find the explana- 
tion of his anomalies. Hence it is a vain thing to pass over 
his parents and I know not how many other generations, in 
order to demand of his misty ancestors the secret of his per- 
versities or deformities.” ? 

The Hypothesis of Prehuman Atavism.— But there are 
monstrosities which cannot be attributed to parents or an- 
cestors. Whence could nature have derived them? To this 
question Sergi answers without hesitation, “From the pre- 
human life, from the lower animality.” If this prehuman 
atavism can be admitted in the case of morphologic anomalies, 
why not in the case of the corresponding functions? This 
would furnish the key to certain instincts which degrade 
the human type to the type of the beast, — explainable 
biologically by the arrested development of those parts of 


> 


1 What we call moral degeneracy is not necessarily accompanied by physi- 
cal degeneracy. In this regard we disagree with Magnan and Féré, as with 
the French school in general. Their views run counter to the undeniable fact 
that a large proportion of criminals (and indeed of the worst criminals) 
enjoy perfect health and exhibit no trace of bodily degeneracy. But this does 
not prevent the existence in their organization, in their molecular anatomy, 
of some deviation, some difference which makes them moral degenerates. 
Such condition, however, is not a peculiarity, idiosyncracy, or disturbance 
capable of deranging their physiologic condition: it merely produces a moral 
anomaly. 


§ 6] CRIMINAL ANOMALY 111 


certain organs which have a direct influence upon the psychic 
functions. It would explain that extraordinary brutality 
which sometimes appears in criminals — that ferocity which 
always and everywhere would stamp its possessor as an 
exceptional being. The typical criminal is much worse than 
the worst of savages — his regressive moral traits, at least, 
are much more marked; the lesser criminals, on the other hand, 
are in many respects better developed than many savages. 
In fine, the typical criminal would seem to be a psychic 
monster with regressive traits which place him on a level with 
the lower animals, while the lesser criminal would seem to 
possess a psychic organization whose characteristics approxi- 
mate him to the savage. 

It is idle to say that the hypothesis of pre-human atavism 
can be accepted only by those who unreservedly believe in 
the transformation of species. Yet the theory is not altogether 
free from improbabilities. Better it is to acknowledge humbly 
that this phenomenon, like so many others, is shrouded in 
mystery. But even so, the fact nevertheless remains that 
the typical criminal is morally a monster possessed of some 
characteristics in common with the savages and still others 
which sink him beneath the level of humanity. 


§ 6. Classes of Criminals 


(1) Murderers. — The typical criminal, as we view him, 
is a man in whom altruism is totally lacking. Now, when we 
find complete egoism, or in other words, absence of any senti- 
ment of benevolence or pity, it is useless to look for traces 
of the sentiment of justice. This sentiment is later in origin 
than that of benevolence and presupposes a higher degree 
of moral evolution. Hence the same criminal will be thief 
or murderer as occasion arises: he will take life to satisfy 
his greed for money, to gain an inheritance, to rid himself of 
his wife that he may marry another, to put out of the way an 
incriminating witness, to avenge a fancied or insignificant 
wrong, or even to exhibit his physical dexterity, his sure eye, 


112 CRIMINOLOGY [$6 
his firm hand, to display his contempt for the police or his 


hatred for men of another class. 

Such is the criminal whom we may call the murderer 
(“assassin”), — using the word in its general acceptation and 
not in the restricted sense of many of the codes. Being at the 
summit of the scale of criminality, he almost always presents 
a combination of the principal characteristics described above, 
— sometimes in an extreme degree. In such exaggerated 
cases the anomaly, I would add, is disclosed by the very cir- 
cumstances of the crime. In less evident cases the nature 
of the criminal cannot be determined without anthropologic 
and psychologic examination. In dealing with the classifica- 
tion of the lesser criminals, therefore, science is called upon 
to render a more important service. 

(2) Violent Criminals: (a) Endemic Crimes. — These same 
lesser criminals — men who neither morally nor physically 
are so far removed from the generality as the preceding — 
must now engage our attention. And here, in conse- 
quence of the distinction in criminals which corresponds 
to that already pointed out in natural crime, there emerge 
into plain view two well-defined classes —the one char- 
acterized by lack of benevolence or pity, the other by lack 
of probity. 

The violent criminals comprise the first class. Under this 
class fall, in the first place, the authors of such crimes against 
the person as may be termed endemic, or in other words, such 
crimes as constitute the special criminality of a given locality. 
Modern examples of this sort of criminality are found in the 
vendettas of the Neapolitan Camorrists or the political assas- 
sinations of the Russian Nihilists. 

In such cases the environment has unquestionably much 
influence. Prejudices of honor, of politics, and of religion 
figure very largely. In some countries, the general character 
of the population, the instinct of race, or an inferior degree 
of civilization or sensibility causes even trivial wrongs to 
result in bloodshed. Thus in various localities of the South of 


§ 6] CRIMINAL ANOMALY 113 


Europe, to be a witness in even a civil suit is to run the risk 
of losing one’s life, and he who supplants the tenant of a farm 
by offering better terms to the landlord is quite likely to die 
of a gunshot wound. 

“At Rome,” says Gahelli, . . . “the most trivial motive, 
a displeasing remark in the excitement of play, malicious 
tale-bearing, professional rivalry, a vague suspicion of the 
faithfulness of a fiancée or a wife, still suffices to cause murders 
of a character to make one shudder. . . . The general state 
of civilization naturally contributes to this phenomenon, 
but what most directly contributes is ideas and usages — 
ideas and usages not altogether without something generous 
and romantic, — which still persist in the rural districts, not- 
withstanding their gradual disappearance in the cities. He 
who pockets an insult isnota man. As late as fifteen or twenty 
years ago the young woman of the lower classes would hardly 
look at a man who had never made use of his knife,! or been 
embroiled with the police. . . . The keen-bladed, glistening 
knives displayed at the fairs dazzle the covetous eyes of the 
young ‘contadino.’ Picking one up from the stall, measuring 
it, brandishing it, making it flash in the sunlight, he finally 
becomes its possessor and hastens to thrust it in his pocket, 
whence it will one day emerge to be plunged between the ribs 
of a comrade or friend. It is of little moment who has the 
right of the quarrel. The thing is not to yield, not to allow 
oneself to be intimidated, not to depart without seeing the 
affair to an end.” ? 

Almost the same ideas are found prevailing in certain locali- 
ties of the North of Europe, as, for example, in the Aspé 
Islands * and among the Frisians — a fact which is evidently 
due to racial traditions. 

As is well known, certain superstitions, such as belief in 
witchcraft, the casting of spells, the evil eye, certain class or 


1 In many places in the environs of Rome and Naples, a knife is still the 
first present from a young woman to her fiancé. 

2 A. Gabelli, ‘Roma e i Romani,” p. 32 et seg. (Rome, 1884). 

* See post, p. 119. 


114 CRIMINOLOGY [$ 6 


caste ideas, certain refinements of the point of honor, all 
have had their influence upon criminality. In the South of 
Italy there are people who believe that sexual intercourse with 
a virgin is a cure for venereal disease. It is this belief which 
accounts for many cases of rape. Among the lower classes 
of Naples it is supposed that priests and nuns have the gift 
of prophecy. Instances have occurred of their imprisonment 
and torture in the attempt to make them divulge their sup- 
posed knowledge of the winning number in an approaching 
lottery-drawing. One of them, Frate Ambrogio, is said to 
have died from the effects of his maltreatment. In the same 
classes a prejudice of honor makes it a serious offense for a 
young woman to jilt her sweetheart. By way of punishment 
she is slashed in the face with a razor and thus disfigured for 
life. In France, within a comparatively fecent period, it be- 
came quite common for women betrayed by their lovers to 
have recourse to vitriol for the purposes of disfigurement — a 
practice which at times seems to have assumed the proportions 
of an epidemic. In Scotland, at the beginning of the 1800s, 
vitriol-throwing seems likewise to have flourished, but here 
its victims were employers and its perpetrators their dis- 
satisfied workmen.! 

It is also apparent from these facts that imitation plays a 
considerable part in a multitude of crimes against life and 
liberty. Must we then infer that the criminal is a normal man 
and that crime is merely the effect of example? ? If such were 
the case, criminals would no longer form a small minority: 

1 Aubry, “La contagion du meurtre,” pp. 95, 96 (Paris, F. Alcan, 1888). 

2 “We speak of the born criminal, — but all criminals are born criminals. 
It is their organization which impels them to crime just as the organization 
of the artist impels him to the study of the beautiful. Raphael was a born 
painter. Nevertheless, occasion had much to do with his production, for 
instance, of the Stanze. Moreover, without an ardent passion for art, it 
would not have been possible for him to create such a number of master- 
pieces in a comparatively short life. Congenital predisposition excludes the 
influence of neither occasion nor passion. This is true whether the influence 
is for good or for evil.” (Paper read by Benedikt before the first Congress 


of Criminal Anthropology. Actes du ler Congrés d’Anthropologie crimi- 
nelle, p. 140, — Rome, 1887.) 


§ 6] CRIMINAL ANOMALY 115 


crime would lose the character of an exceptional fact. The 
people who commit the offenses just spoken of, are always 
destitute of some part of the sentiment of pity in the average 
measure possessed by the great majority of the population. 
Even in the races to which allusion has been made — races 
whose sensibility or civilization has not attained the same de- 
gree of development as our own, — murder and kindred crimes 
are abnormal facts. This sort of endemic criminality affects 
but a small number — individuals whose psychic organiza- 
tion lacks resisting agents of adequate strength, in whom the 
part of the moral sense denominated the sentiment of pity, 
has barely an existence. “‘With this defect,” says Benedikt, 
“which is due to a congenital diminution of sensibility to 
mental suffering and disagreeable feelings, there is often com- 
bined a defective vulnerability,” that is to say, the quality 
which some people possess of not feeling physical injuries, 
of feeling them less than others, or of having them heal 
rapidly. This author cites some remarkable examples, from 
which he draws the conclusion that such people regard them- 
selves as privileged persons, holding the delicate and sensitive 
in contempt and taking a positive pleasure in inflicting 
pain upon what in their eyes are inferior beings. 

This physical insensibility, moreover, prevents any vivid 
representation in their minds of the suffering which they 
cause to others, since they themselves either would not feel 
such suffering or would feel it but little. It must be admitted, 
however, that this lack of vulnerability, very frequent in 
other races, as, for example, the Chinese, is seldom found 
among Europeans, and is especially rare in the city popula- 
tions, where even the lower social strata have acquired a 
certain degree of refinement. 

Violent Criminals (continued): (b) Crimes of Passion. — 
Following this class of endemic crimes, come crimes which are 
committed under the influence of passion. This condition 
“may be habitual and represent the temperament of the 
individual” (Benedikt), or else may be the result of external 


116 CRIMINOLOGY [§ 6 


causes, such as alcoholic liquors, high temperature, or even 
circumstances of a really extraordinary nature which are 
calculated to arouse the anger of any person, although not 
to quite the same degree. In the last case the criminal may 
closely approach the normal man. When, for example, 
there is an instantaneous reaction against a sudden and serious 
wrong, the shade of distinction may be almost imperceptible. 
Under such circumstances even homicide may lose its horrors. 
Given a case which justifies a violent reaction, taking the 
offender’s life seems merely an excessive form of reaction. 
The difference is only one of degree, but it is just this differ- 
ence which proves the existence of a minimum of moral 
anomaly. 

In our opinion, therefore, a differential psychic element 
is always to be found. Let us take, for example, the case 
of a permanent passionate state due to the temperament. 
Anger is merely an elementary disorder of the psychic func- 
tions, an abnormal mode of reaction on the part of the brain 
against external excitations. As Virgilio says, this disorder 
often accompanies degenerative conditions characterized by 
lack of development of the cerebral organs or excessive weak- 
ness of the nervous system proceeding from an hereditary 
cause. The question then is — is the existence of this tem- 
perament of itself sufficient to explain an act of cruelty? In 
other words, is it possible for one who takes life in a fit of 
anger to be endowed with a sentiment of humanity in no 
respect inferior to that of non-criminals? 

I do not think so. A man in an access of violent rage, may 
suffer himself to strike the person who has provoked him, 
but he uses his fists and not his knife. Anger merely exag- 
gerates the character: it is the determining cause of crime, 
but only when the agent is lacking in the strength of moral 
resistance which comes from the altruistic sentiment. It goes 
without saying that the case of a true pathologic condition, 
such as a neurosis or phrenosis, of which passion is merely a 
symptom, must always be excepted. 


§ 6] CRIMINAL ANOMALY 117 


A question related to the preceding is whether external 
agents such as alcoholic liquors or high temperature are capa- 
ble of engendering such a state of passion as will impel an 
honest man to commit a criminal act. Comparative statistics 
prove drunkenness to be uncommon in the countries which 
show the highest percentage of homicide and, on the other 
hand, very common in countries where homicides seldom 
occur.! Without doubt, drunkenness easily excites the mind 
and is often the éause of quarrels. But in these quarrels it is 
only the drunkard with a criminal temperament who seeks 
to use the knife or revolver. The non-criminal drunkard, 
on the contrary, fights with his bare hands. His object is 
to lay his opponent prostrate, to “knock him out” as the 
_ English say. When he has succeeded, he will himself perhaps 
aid his fallen foe to regain his feet. In Italy a tavern brawl 
often results in bloodshed, in England almost never. Shall 
we say this is due to the difference of race, or shall we not rather 
ascribe it to the degree of civilization and moral evolution? 

Of this question later. For the present we seem to be com- 
pletely justified in saying that alcohol has but little effect 
upon crime of this character. Moreover, it has been my 
uniform experience as a criminal magistrate that men who 
have taken life under the influence of liquor are nearly 
always persons who had sustained a previous bad character 
or had been formerly convicted of similar crimes. 

With respect to climate and variations of atmosphere and 
temperature, it is clear that so long as all the inhabitants of a 
country are equally exposed to their influence, this influence 
can be considered important only: in the matter of compara- 
tive statistics, — as one of the causes which account for the 
differences in criminality between different countries. Be- 
yond doubt, in the territory occupied by one and the same 
race, the localities in which a warm climate prevails, at least 
in Europe and America, are characterized by a larger number 


{2 On this subject, see a notable monograph by Colajanni: “L’alcoolismo, 
sue consequenze morali, e sue cause’ (Catanea, 1887). 


118 CRIMINOLOGY [$6 


of murders, while in the Northern countries, crimes against 
property are the predominant form of criminality. This con- 
trast is noticeable, for example, between Upper and Lower 
Italy, Northern France and the Midi, and the Northern and 
Southern States of the American Union. But in the case of 
peoples who have left their racial confines, this climatologic 
influence seems to lose its effect. Thus the Arabs of Egypt 
are less disposed to crimes of bloodshed than many peoples 
living in cooler climates. This, however, is no reason for al- 
together denying the influence of temperature upon the pas- 
sions. Tarde himself.admits that climate has something to do 
with geographic contrasts in the matter of crime, and that 
“high temperatures exercise an indirect influence upon the 
evil passions.” That this is so seems to be fully proved if, 
in connection with geographic data, we take into considera- 
tion the further fact that in the same country, the maximum 
number of crimes against the person occurs in the warm 
months, while crimes against property attain their maximum 
in winter. By a comparison of the variations in temperature 
during a period of many years, with the number of offenses 
against chastity which occurred during the same period, 
Ferri has shown this to be a settled law.! 

Buckle, as we know, makes much of the influence exerted 
by the physical environment upon the character and pre- 
dominant temperament of the people, — carries it even to 
the point of exaggeration. But bound up as it is with other 
elements, how are we to measure this influence? Is it in cli- 
mate or in heredity that we are to seek the principal source 
of what we call the character of a people? Not only does 
anthropology seem to point to heredity, but history also 
lends support to this view. The persistence from the earliest 
antiquity of similar types of character among certain peoples, 
and especially the wide differences in character between 
peoples who, although living under the same isotherm and 


1 See, however, Colajanni’s criticism of this theory in Archives d’anthro- 
pologie criminelle, 1886, No. 6. 


§ 6] CRIMINAL ANOMALY 119 


sometimes even in the same locality, belong to different races, 
are significant facts in this regard. 

To see this persistence of racial moral character strikingly 
exemplified, compare the Gauls as described by Cesar, or 
the ancient Germans as we see them in the pages of Tacitus, 
with their descendants of the present day. Except for the 
differences due to civilization — differences, moreover, which 
are but superficial and do not affect the essential virtues and 
faults of the two peoples,—the description of the Gauls 
exactly fits the modern French, as does that of the first- 
century Germans, the Germans of the twentieth. 

I am in possession of some very interesting data relating to 
the inhabitants of the Aspé Islands, which lie in the Baltic 
near the Aland group and not far from the coast of Finland. 
These people, both physically and morally, show a marked 
contrast to their blond and phlegmatic Scandinavian neigh- 
bors. They have bluish-black curly hair, black eyes, an aqui- 
line nose; they are small but powerfully built; in short, their 
type is altogether Southern. Moreover, they possess an excit- 
able temperament: in their quarrels they constantly resort 
to the knife. The tradition is that they are of Southern origin, 
Spanish or Arab. Their ancestors, it would appear, were the 
survivors of a shipwreck, who settled on the island many 
centuries ago. They took to themselves wives from the ad- 
joining shores, and from these unions sprang an isolated com- 
munity which apparently did not further intermingle with the 
surrounding peoples. 

Corsica affords another example of the persistence of racial 
character. Its endemic criminality, which from time to time 
has been put down with an iron hand, ever tends to break out 
anew as soon as repression shows signs of relenting.1 In 
Austria, homicides and strikings and woundings (“coups et 
blessures’’) are most frequent in the Slavic provinces of the 
South, such as Dalmatia and Styria. In Belgium, the same 
thing is true of the Flemish provinces; — impulsiveness and 

1 Bournet, ‘La criminalité en Corse’ (Lyons, 1887). 


120 CRIMINOLOGY [$6 


irascibility of temper are well known Flemish characteristics.’ 
In England, this place is occupied by the Welsh counties of 
Glamorgan, Montgomery, and Brecon, where the population 
is almost entirely of Celtic origin. 

Opposing my views on this subject, Colajanni insists that 
the Scots of the 1700s, unlike their modern descendants, 
were addicted to forays and brigandage. He forgets, however, 
that this was true, not of the Scots as a whole, but only of 
certain Highland clans, who regarded themselves as belliger- 
ents. That they raided the Lowlands, that they took the 
lives and carried off the cattle of their Southern neighbors ~ 
these facts are wholly irrelevant, so far as the question of the 
country’s internal criminality is concerned. There is no 
proof that these same Highlanders were given to theft and 
murder among themselves. 

That civilization may operate to milden the racial character 
is not, after all, to be denied. But its effect becomes appre- 
ciable only after the lapse of many centuries, and there 
always remains at bottom something of the ancient racial 
instincts. | 

Moreover, since climate is an element inseparable from the 
life of an established people, its influence upon crime is as 
constant as that of heredity. Whether race or climate is the 
principal element in a people’s character is a question of small 
moment, for the influence of both is exerted upon the people 
as a whole, and not upon individuals. The important thing 
for us is to measure the influences which mould, not national 
character, but the character of individuals who are com- 
prised in a given nation. With this in view, a subsequent 
chapter will be devoted to a consideration of those external 
agencies which operate differently upon different individuals, 
such as, for example, traditions, family life, education, 
economic conditions, religion, legislation — in short, all 
that which goes to make up what we know as the social 
environment. 


1 Bosco, “ Gli omicidii in aleuni stati” (Rome, 1889). 


§ 6] CRIMINAL ANOMALY 121 


For the present, then, we may conclude that neither endemic . 
criminality, nor that apparently due to variations of climate 
and temperature or the abuse of alcoholic liquors, can exist 
independently of the agent’s individual anomaly. Through- 
out the whole class of crimes against the person, this anomaly 

consists in the peculiarity of a violent temperament combined 
_ with an hereditary absence of instincts of pity. This, however, 
does not exclude the existence in some cases of true degeneracy, 
in the medical sense of the term, — that is to say, pathologic 
conditions such as hysterical neurosis (frequently occurring 
in cases of false accusation [“calomnies”’’] and crimes char- 
acterized by cruelty and brutality), epileptic neurosis, and 
alcoholism (often found in the case of strikings [“coups”’], 
woundings [“blessures”] and threats), and lastly, certain 
perversions of the sexual instincts (not uncommon in cases of 
indecent assault [“attentats 4 la pudeur”’] and rape). 

Cases are possible in which a crime of the class under dis- 
cussion appears as an isolated fact in the life of the offender, 
and neither anthropology nor psychology can shed any light 
on his character. The exceptional nature of the circumstances 
which have impelled him to crime renders it difficult to com- 
pare him with normal men, since we are unable to say what 
would have been the conduct of another man in the same 
situation. If there were such a thing, we would have here a 
true case of the casual or occasional criminal. Yet even here, 
if the offense in question is a natural crime, it cannot be 
gainsaid that the offender is lacking in repugnance for vio- 
lence, cruelty, or brutality. But from the very fact that 
nature itself deals in fine shades of distinction, we are unable 
to trace a line which distinctly marks off the world of criminals 
from that of honest men. For practical purposes, then, we 
may regard an intermediate zone as existing between the 
two. Into this zone enter the least serious violations of the 
sentiment of pity —all such offenses as are attributable, 
not to an instinctive cruelty, but rather to a certain rudeness 
of feeling (“rudesse”), due principally to the lack of training 


122 CRIMINOLOGY [$ 6 


or the absence of conventional restraints. Cases of offensive 
words (“injures”), threats, and strikings and woundings 
(“coups et blessures’’) are sometimes of this character, as 
when they occur in the course of one of those brawls which, 
among the lower classes, spring up almost without warning, — 
there being no intention on the part of the assailant to do 
his adversary serious harm. So, too, are cases of homicide 
due to negligence (“imprudence ou le manque de prévoyance”’) 
and seduction not under promise of marriage (“sans trom- 
perie”’). Here we find the extreme limit of natural criminality. 
In the authors of these offenses moral anomaly may or may 
not be present. In any event, whatever be their psychic differ- 
ence from normal man, it is often very slight. They cannot, 
therefore, be looked upon as wholly inadaptable to society.1 
In this connection, the subject of criminal mobs? also 
requires some attention. Whenever crimes are committed in 
the course of popular agitations or disturbances, the question 
arises whether there is any individual responsibility for such 
acts or whether individual responsibility is not almost wholly 
merged into a collective responsibility. An excited mob, for 
example, burns and kills. If we can single out the men who 
actually applied the torch or fired the shots, is it just to punish 
‘them? Some writers do not think so: they regard the sug- 
gestion of the crowd as an irresistible force; for them the 


1 On this point alone can I agree with Zuccarelli, respecting the existence 
of the casual offender. This author (see Anomalo, June, 1889) believes 
that any man is liable to commit crime under really extraordinary circum- 
stances — an opinion which is fairly widespread. In such cases, however, 
true crime often does not exist: there is nothing but the appearance of crime. 
On the other hand, if crime really exists, the agent cannot be a casual offender. 
The fact that circumstances are visible and the moral anomaly difficult to 
discover, makes it easy to ascribe almost any sort of act to the influence of 
circumstances. Circumstances, indeed, may sometimes furnish the complete 
explanation of a criminal act, but only when, during a long period of time, 
they have so woven themselves around the agent’s being as to result in 
destroying his moral sense and rendering him a degenerate. But here there 
can be no question of a casual offender. 

2 See Sighele, ““La folla delinquente” (Turin, 1891): French translation 
(Paris, F. Alcan); Gustave Le Bon, “‘La psychologie des foules” (Paris, F. 
Alcan); Tarde, in Revue des Deux Mondes, 15 November, 1893. 


§ 6] CRIMINAL ANOMALY 123 


individual is an unconscious member of a new species of crim- 
inal—the heedless, furious mob. Other writers, while 
rejecting this view, contend for a diminished individual 
responsibility. But is there really any basis for this concept 
of collective crime? As Tarde has accurately pointed out, 
even those popular movements which appear the most spon- 
taneous are not without their secret leaders: there is no public 
disturbance, however extended, which may not be traced to 
the activities of a few individuals. It is seldom, however, 
that these instigators take any actual part in the doings of the 
mob: they have, as we know, a fashion of prudently disap- 
pearing. . 

Take this raging mob which holds the street — of what 
elements is it composed? A sprinkling of respectable men 
there is, to be sure, but each moment sees its ranks augmented 
by swarms of sinister figures. They come, one knows not 
whence, the scum of the city and its environs — roughs and 
vagabonds scenting opportunity for plunder, professional 
criminals guided by an instinct which never fails. The 
strength of these elements in Paris in 1792-93 has been 
estimated at 40,000. This was the “people” of the street 
orators’ harangues — that “people” which crowded the galler- 
ies at the sittings of the Convention, urging the most violent 
of the speakers to even greater extravagances and coercing 
the Convention itself into the adoption of measures whose 
injustice was only equalled by their absurdity. 

The mob begins its work of destruction and pillage, becomes 
drunken with its own menacing outcries, — but at this stage, 
the people of respectability, whether attracted in the first 
place by curiosity or otherwise, all slip away. Of its remaining 
members a majority are men who have already committed 
criminal offenses, or at least possess a predisposition to crime. 
When an unfortunate police agent is seized and cast into the 
river, this is the work, not of the people, but of a handful of 
criminals. It was not the people who decapitated the Marquis 
du Launay after the taking of the Bastille, or inflicted upon 


124 CRIMINOLOGY [$ 6 


Bailly in front of his scaffold tortures which would have put a 
redskin to the blush. It was, instead, a horde of criminals, 
thus wreaking their revenge upon a society whose hand had 
ever been raised against them, — among them lunatics and 
degenerates of every description. Such were the men whose 
crimes dishonored the revolutions of 1793 and 1871. 

Whenever it has been possible to identify the persons who 
actually participated in crimes committed by mobs, they have 
nearly always been found to be recidivists, habitual offenders, 
or vagabonds.! 

In support of the opposite view, Le Bon cites the case of 
the Septembrists, who, in 1792, stormed the prisons of Paris 
and massacred a large number of royalist prisoners. This mob, 
he says, apart from a few professional ruffians (“gredins 
professionels”’) was composed of small shopkeepers and arti- 
sans of all sorts.2 This is possible, although we are not in- 
formed as to the exact proportion of these “professional 
ruffians,” and for all we know, these shopkeepers and artisans 
may have been the worst elements of their respective classes. 
But in any event, this case proves nothing. It is a well authen- 
ticated fact that the Septembrists were selected in advance, 
organized and paid by the Commune to do what they did—to 
effect this massacre, which, according to Danton, was to put 
a river of blood between the Revolution and the Royalists.’ 
They constituted, in reality, a quasi-military organization, 
and in obeying the orders of their superiors believed that they 
were rendering a patriotic service. This was by no means the 
suddenly-gathered mob which the impulse of the moment 
makes criminal. | 

For my part, I find it impossible to believe that in such 
cases “a momentary current of ferocity passes through the 
normal mind and effects a complete change in its nature.” 4 
I believe, on the contrary, that excesses always cause a normal 


1 Sighele, op. cit., p. 62. 

* Gustave Le Bon, “Psychologie des foules,” p. 149 (Paris, F. Alcan). 
* Lamartine, “Les Girondins,” III, pp. 320, 321, 382 (Paris, 1847). 

4 Tarde, article cited. 


§ 6] CRIMINAL ANOMALY 125 


mind to revolt, and that as soon as they appear, the normal 
_ man who finds himself in a mob, takes his departure as soon 
as possible, — knowing that intercession on his part would be 
of no avail. Far from being swayed by suggestion, the sight 
of the tortures endured by the unhappy victim of the mob 
causes him to shudder; nothing but fear and a sense of his 
own impotence prevent him from betraying his inward 
revolt. To saturate a man with petroleum and set fire to 
him, to throw women out of windows, to take delight in pro- 
longing the sufferings of a victim — this is the work of crimi- 
nals — true criminals, who add cowardice to cruelty. If 
such men constitute a mob, it needs no diminution of indi- 
vidual responsibility to call this a criminal mob. 

There have been many instances of mobs whose “anthropo- 
logic composition,” to use Sighele’s expression, was not bad — 
mobs which it has been possible to calm by means of reasoning 
or energetic action or which in any event have stopped short 
of the bloodshed to which they were incited.!_ These examples 
are proof of what we have been contending. “A mob composed 
of honest men may be guilty of excesses, but it can never 
attain that degree of perversity which characterizes a mob in 
which criminals form a majority.”’ Belief in the all-power- 
fulness of suggestion is unfounded. “If it be an established 
fact that hypnotic suggestion, the most powerful of all sug- 
gestion, does not go so far as to annul the human personality, 
how is it possible that any species of suggestion can destroy 
the personality of a man who is fully awake?” ? There is 
consequently no such thing as a collective crime. The only 
criminal mob is a mob which is composed of criminals. 

(3) Criminals Deficient in Probity. — We may next consider 
criminals belonging to the other division, namely, those guilty 
of crimes against property. Here, unquestionably, social 
factors are much more influential than in the preceding classes. 
But this fact does not always prevent us from detecting 
in the criminal’s organism an element which preéxists any 

1 Sighele, op. cit., pp. 65, 66. 2 Ibid., p. 84. 


126 CRIMINOLOGY [$ 6 


effect of environmental influence. The sentiment of probity 
is undoubtedly less instinctive than that of pity, or to state 
the matter more accurately, it is not so strictly dependent upon 
the organism. It is a sentiment of more modern acquisition, 
it represents a superposed, almost superficial, stratum of the 
moral sense, and consequently is less susceptible of hereditary 
transmission than the sentiment of pity. It lacks, moreover, 
that peculiarly congenital nature for which education can 
furnish no substitute. In a civilized society this sentiment 
of probity is generally the effect of examples in infancy which, 
continually renewed, have produced an ingrained instinct 
which in all probability will persist for life. 

Yet it may sometimes happen that the child of an honest 
family exhibits a thievish instinct whose existence can be 
attributed neither to education nor to example, since his 
brothers and sisters who are wholly without any such trait, 
have been exposed to these identical influences. From his 
earliest childhood, this little being, who seems born only to 
overwhelm his parents with shame, steals articles belonging 
to friends of the family or even to servants, hides them, 
and sometimes sells them to procure what he most wants. 
Such an instinct, it is clear, has nothing in common with that 
form of alienation which we call kleptomania. In the latter 
case the sole motive which actuates the thief is the pathologic 
pleasure of stealing. He does not seek to derive any profit 
from his theft; he does not even take pains to hide what he 
has stolen; he makes no use of it; frequently he will return 
it of his own accord. In the case of congenital improbity, 
on the other hand, the thief has often recourse to dissimula- 
tion and deceit, and to prevent discovery he is likely to ac- 
cuse an innocent person of the crime. When a propensity of 
this kind cannot be ascribed to bad examples or direct inheri- 
tance, it can be attributed only to a remote atavism. In no 
other way can we account for an instinct so utterly at war 
with the subject’s education and training and the instincts 
of his family. 


§ 6] CRIMINAL ANOMALY 127 


But the case most frequently met with is that where the 
improbity is the result of direct inheritance from the parents, 
intensified and continued by the influence of bad examples. 
In such case the instinct is at once congenital and acquired. 
The external element and the organic element are so combined 
that it is impossible to distinguish them. 

Again, apart from the family and its influence upon the 
formation of the instincts during early childhood, there are 
certain environments especially favorable to the develop- 
ment of rapacious instincts. The limits of such an environ- 
ment need not be wide: two or three evil companions, some- 
times a single intimate friend, are sufficient to lead a youth 
into this sort of crime. Since crimes against property are 
rarely justified by the prejudices or customs of a whole people, 
they never acquire an endemic character, as do certain crimes 
against the person. It is only from hereditary moral degen- 
eracy, or by the influence of his individual environment — 
that immediately surrounding him — which may create an 
instinct as deep-rooted as if it had been hereditary, that a 
man becomes a thief. There are but few exceptions. As 
one of these might be cited brigandage, which has become 
endemic in certain places, such as Calabria, Greece, Servia, 
and Albania. But in these countries the brigand is looked 
upon as an insurgent (“révolté”) rather than as a thief; 
he is in a state of open war with the social power, of which he 
stands in armed defiance. Continually risking his life, he 
presents a certain chivalrous aspect which causes him to 
be admired by the very people whom he harries. Entire 
peoples have been addicted to brigandage, such as the 
Normans of the Middle Ages and the Highland clans of 
Scotland in the 1700s. Here, then, we are not called upon 
to deal with criminality, but with the predatory life of a 
nation or tribe not yet reconciled to the activities of peace. 
Crime always involves the idea of an act harmful to the 
people of which the agent forms part. It is the more or 
less exceptional and censurable act of an individual, never 


128 CRIMINOLOGY [$ 6 


of a whole aggregation. This distinction is too plain to 
need further argument. 

In contemporary society, the propensity to theft is often 
accompanied by laziness, and desires surpassing the means at 
the individual’s lawful disposal. Benedikt defines the psychic 
anomaly of such criminals as a “moral neurasthenia” com- 
bined with a “physical neurasthenia,” either congenital, 
or acquired in early childhood. Its principal element is an 
“aversion to work, so great as to amount to resistance, 
and which is itself due to the nervous constitution of the 
child. . . . If, from his infancy, an individual has neither 
the strength to resist momentary impulses (“entrainements’’), 
nor the power to obey generous excitations, and particularly 
if this moral struggle has for him the effect of something pain- 
ful, then he is a moral neurasthenic. As such, in the course of 
time, he will avoid every moral struggle, he will think, he 
will feel, he will act, under the pressure of this moral neuras- 
thenia. He will develop a complete system of philosophy and 
practice based upon his aversion to moral conflict.” 

All this, however, presupposes an individual who is capable 
of the moral struggle in question, — education having im- 
pressed upon him some notion of his duties. But with the 
majority of thieves, the case is otherwise: reared in unprinci- 
pled and brutalized families, such a conflict is something wholly 
foreign to their natures. While Benedikt’s description for 
this reason is only partially true of thieves, it fits much more 
closely the case of the vagabond. Vagabondage, according 
to this author, must be attributed to a purely physical neur- 
asthenia taken in connection with the necessity of getting 
the means of existence. “In the absence of complications, 
the vagabond never becomes guilty of crime.” But if “the 
physical neurasthenia is combined with a keen appetite for 
pleasure, there results a dangerous desire of procuring at all 
costs the means of satisfying this appetite. If, then, the in- 
dividual is also a moral neurasthenic, he will offer no resist- 
ance to this desire, and, other means failing, he will commit 


§ 6] CRIMINAL ANOMALY 129 


crime to attain it. Such a combination plays a very con- 
siderable part in the psychology of thieves, forgers, swind- 
lers, foot-pads, and professional criminals in general. The 
neurasthenic criminal calculates in a perfectly normal manner 
the chances of success or failure of his enterprises. He soon 
comes to recognize the superiority of the social power. But 
since he is incapable of sustained effort, he is contented with 
transitory results, and, like most men, his hope is greater than 
his chances of success.”” To these characteristics must be 
added an ambition to make the most of his criminal talents, 
to become a master of his criminal specialty, to gain renown 
in the criminal world. “When a moral neurasthenic once 
discovers the ease with which he may turn to advantage the 
inattentiveness, absence of mind, credulity, and timidity of the 
public in general, he loses no time in improving his opportun- 
ities, he studies his art until there is no crook or turn which 
he has not fully explored. Success yields him not only the 
pleasure of its material results, but also a sense of pride in the 
adroitness with which he has duped his victim and a conse- 
quent belief in the superiority of his own intelligence. . . . These 
two elements: the desire to shine in their criminal profession, 
and the fascination of plots and schemes — taken in combina- 
tion — constitute a motive which counts for much in the 
psychology of burglars, forgers, swindlers, and highwaymen.” 

This description enables us to perceive in its full signifi- 
cance the difference existing between the present class of 
criminals and that which is characterized by absence of the 
sentiment of pity. That thieves, forgers, and swindlers are 
very often incapable of an act of violence against the person, 
and that such repugnance to cruelty frequently leads convicts 
of this character to boast that they were sentenced for theft 
and not for murder, are facts which need not excite our 
wonder. Except in the case of the extreme murderers, who 
lack every vestige of moral sense, the other class of criminals 
shows exactly the opposite feeling. The prisoner convicted 
of homicide or wounding (“blessures”), where the motive of 


130 CRIMINOLOGY [$6 


his crime was vengeance, jealousy, or a notion of honor, or 
where the crime was immediately due to a passionate tem- 
perament or the effect of alcohol, will contemptuously declare 
that he has never been guilty of theft. In fact, this sort of 
criminal may possess the sentiment of probity in a marked 
degree; he may be capable not only of fidelity, but even of 
devotion, to his employers and benefactors; he may even 
be wholly incapable of the slightest deceit. 

These facts prove that in the lesser degrees of criminality, 
we have to deal, not with the complete absence of the moral 
sense, but merely with the absence or weakness of the one 
or the other of the two elementary altruistic sentiments — 
pity and probity. 

(4) Lascivious Criminals (“Cyniques”).— We come now 
to crimes due to sexual impulse and offenses against chastity 
in general. In many cases the authors of such crimes must be 
assigned to the class of violent criminals. But where an ex- 
treme degree of lasciviousness is the sole motive of the offense, 
satyrs of this description are often found suffering from some 
form of alienation. The very considerable number of old men 
who offend in the present respect shows that in their cases 
the crime frequently stands in very close relation to senile 
dementia. Still, it must be admitted that there are many 
non-pathologic cases of this description — cases of lecherous 
offenders (“cyniques”) who take indecent liberties with 
little girls, or are guilty of other degrading sexual manifesta- 
tions. Such criminals look no further than the pleasure to 
be experienced in committing the punishable act. To this, 
they sacrifice reputation; for this, they endure shame and 
ridicule. In general, it is a lack of moral energy rather than 
absence of the sentiment of pity which explains these crimes. 
For this reason, it becomes a difficult matter to class them all 
among the violent criminals, although, in common with the 
latter, they are characterized by total disregard of the physical 
or moral pain which their acts occasion to others. 

Accordingly, I have deemed it proper to assign criminals 


§ 6] CRIMINAL ANOMALY 131 


of this kind to a separate class — the lascivious criminals 
(“cyniques’’), — which completes our classification. 

Summary; Concluding Observations. —It is thus apparent 
that under our scheme of distribution all criminals (that 
is to say, true criminals and not mere “révoltés’” whose 
offenses consist solely in disobedience to the law, and reveal 
no moral inferiority on the part of the agent) fall into four 
classes, viz.: (1) murderers, (2) violent criminals, (3) crimi- 
nals deficient in probity, and (4) lascivious criminals (“cy- 
niques”). Side by side with these types we must range the 
corresponding forms of alienation or neurosis — with the 
first two classes, for example, homicidal mania, pyromania, 
epilepsy, hysteria; with the third, kleptomania; with the 
fourth, sadism.'! And lastly, it will be necessary in each class, 
to group by themselves such youthful offenders as do not fully 
understand what they do and err either from imitation or 
because the environment in which they have been reared has 
impeded their intellectual development. 

Such a classification, based upon moral anomaly, or if one 
prefers, upon a particular kind of immorality, possesses the 
distinct advantage, as we shall later see, of directly suggesting 
appropriate measures of repression. It could be used as the 
basis for a code wherein its principles would determine the 
definition and grouping of crimes. Here, in connection with 
each type-description might be indicated the means of render- 
ing the criminal inoffensive, of turning his activity into useful 
channels, and of educating his moral sense where the case ad- 
mits of this possibility. With respect to true crimes, this might 
serve as an international code, — as the one criminal code of 
the civilized world, — appropriate provision being made for 
extradition and mutual police aid among the several nations. 


1 In addition to the works already referred to, dealing with criminal in- 
sanity and its forms, the following will be found of value: J. de Mattos, 
“A loucura;’’ Antonio d’ Azevedo, ““Carceres e manicomios” and “Estudios 
penitenciarios;” Bernardo Lucas, “A lei penal no processo Marinho de Cruz;” 
E. Bonvecchiato, “Il senso morale e la follia morale;” Ballerini, “Le psico- 
patie e la capacita giuridica ”’ (1891); Corre, “‘Crime et suicide ” (1891). 


132 CRIMINOLOGY [$7 


The only offenses not included in this classification are such 
as constitute mere acts of rebellion or legal disobediences 
(“révoltes, désobéissances et contraventions”’), — acts in the 
punishment of which no regard need be paid to the psychology 
of the offender. In the event of the adoption of the code 
suggested, it would be these last mentioned offenses alone 
with which the local codes of the different nations would have 
to deal. 


§ 7. The Same: Ferri’s Classification 


I do not propose to examine the numerous classifications of 
criminals which have been suggested by various writers on 
anthropology and psychology. But a word may not be out 
of place here regarding the classification which Ferri has 
constantly advocated. According to this, criminals are divided 
into the five classes of (1) born criminals, (2) habitual 
criminals, (3) occasional criminals, (4) passionate criminals, 
and (5) insane criminals. 

As I pointed out at the first Congress of Criminal Anthro- 
pology, held at Rome in 1885, and have subsequently had 
occasion to repeat, this classification is without a scientific 
basis and lacks homogeneity and exactness. In fact, from the 
anthropologic point of view, it may be said that there is no 
such thing as a class of habitual offenders. If his criminal 
habitudes are due to inherited instincts, the habitual offender 
may be a born criminal. If, on the other hand, these habitudes 
have been acquired by the force of examples and the influence 
of his environment, he can only be an occasional criminal. 
The habitual offender is neither an anthropologic nor a 
pathologic variety. 

The attempt to distinguish the born criminal, the habitual 
criminal, and the passionate criminal is equally without 
anthropologic justification. In the first place, all criminals 
are in one sense born criminals, in another, occasional crim- 
inals. All criminals possess a predisposition to crime, which is 
not the effect of external circumstances, but of something 


§ 7] CRIMINAL ANOMALY 133 


residing in the individual’s moral organization, in his manner 
of feeling and thinking. On the other hand, there are certain 
environmental influences which retard the development of 
the sentiments of civilized man and produce perverted 
instincts which, although not hereditary, are none the less 
ingrained. But, in the second place, whether the criminal 
is such from birth or becomes such by subsequently acquired 
perverted instincts, the determining influence in his commis- 
sion of a crime, unless he be insane, is always an external fact. 
And if he is without a predisposition to crime, he will never 
commit it, whatever be the occasion. To suppose it possible 
to glimpse the casual offender is to confuse with crime an 
act which has but the appearance of crime and which morally 
is not a crime. 

Similar considerations apply to the passionate criminal. 
If the passion which actuates him is an anti-social passion, 
such as cupidity, then he falls into the class of born criminals: 
if it is a pathologic passion, as in the case of sadism, then he 
belongs to the class of insane criminals. Then again, if, on 
the contrary, it is a passion not abnormal, such as love, 
jealousy, or the point of honor, how are we to distinguish 
the passionate criminal from the casual or occasional 
offender? Moreover, passion of any kind may be the im- 
mediate cause of the born criminal’s act. Congenital pre- 
disposition, as said by Benedikt, excludes the influence of 
neither occasion nor passion. And, we may add, one or the 
other of these two is always the element which determines a 
criminal act. 

It is therefore apparent that this scheme lacks clearly 
defined class-limits; with equal propriety one and the same 
offender may be assigned indifferently to any one of several 
of the classes proposed. Wholly without homogeneity, it 
offers nothing tangible to the law-maker. Since under its 
terms the necessities of repression may be very different in 
different cases, it precludes any possibility of a plan of repres- 
sion whose measures shall answer respectively to distinct 


134 CRIMINOLOGY [$7 


classes of criminals. Being of no avail to legislation, it is 
consequently without practical interest. 

Considerations of utility clearly require that any classifica- 
tion of criminals shall be according to a single criterion. 
Starting with the idea that every true criminal (every author, 
in other words, of a true natural crime) is morally always an 
inferior, it then is a question of ascertaining the special nature 
of his moral defect, that is to say, the sentiments and energies 
which he lacks and the evil instincts by which he is dominated. 
Such is the theory upon which proceeds my classification of 
offenders into (1) typical criminals or murderers, (2) violent 
criminals, (3) criminals deficient in probity, and (4) lasci- 
vious criminals, 


CHAPTER II 


SoctaL INFLUENCES 


$1. Civilization. 
§ 2. The School. 


§ 3. Religion. 
§ 4. Economic Conditions: the Socialist Thesis. 


§ 5. The Same: Theory of Direct Proportion between Crime and Material 
Prosperity. 


§ 1. Civilization 


To the reader who has followed us through the foregoing 
chapters, the conclusions which we shall seek to deduce from 
the theory of natural crime, already begin to be apparent. 
These conclusions, however, we shall reserve for a later chapter 
since, before developing them, it will be necessary to consider 
the social causes which are generally regarded as contributing 
to criminality. 

It cannot be denied that in countries possessing a civiliza- 
tion in the true sense of the word (“une civilisation bien 
entendue’’), criminality is diminishing, or at least, undergoing 
a transformation in which adroitness and cunning take the 
place of violence; the most barbarous forms of criminality, 
such as piracy, brigandage, murder for revenge, homicide due 
to notions of honor, robbery, arson, etc., are there gradually 
tending to disappear, as witness the countries of Northwestern 
Europe. 

By “civilization in the true sense of the word,”’ I mean to 
imply a state of moral advancement, as distinguished from 
what is sometimes called material civilization. The word 
“ civilization”’ ought above all to signify “morality, education, 
respect, cordiality, activity.”"! Pains taken in the rearing of 


1 Romagnost, “‘Genesi del diritto penale.” 


136 CRIMINOLOGY [$1 


children, the dissemination of right principles of conduct 
throughout all the social strata, — a work in which the higher 
classes by themselves setting proper examples, are called 
upon to perform an important share, — just dealing in all 
departments of the government, and, finally, the energetic 
repression of crime, will contribute much more effectively 
than the most extended network of railways to impart to 
the word this desirable meaning. And with reference to the 
last of these factors, — the repression of crime, — we shall 
presently have occasion to show that the mildening of punish- 
ment is by no means that mark of civil progress which some 
suppose it to be. As we shall see, punishments have been made 
only too mild in certain countries, and these, unfortunately, 
are the very countries in which criminality not only does not 
diminish, but even, under certain forms, is still epidemic, 
despite the fact that in other respects they exhibit a state of 
flourishing civilization. The mildening of punishments 
is bound to lessen appreciation of the gravity of the crime; 
leniency toward criminals cannot fail to dull the moral sense 
of the people to whose knowledge it comes. 

That congeries of moral principles which, during the course 
of centuries, has been gradually extending its dominion 
throughout all the social strata has, aided by severe penal 
sanctions, culminated in the production of self-respect, prob- 
ity, and repugnance for cruelty and injustice. Refractory 
individuals still exist, but their number tends to grow less 
when a large majority of the population has arrived at a defi- 
nite acquisition of these principles of conduct. Certain social 
causes may operate to retard or even to arrest moral prog- 
ress. Among these, and not the least dangerous, is the propa- 
ganda of class-hatred, the preaching of revolt against all the 
principles of the social and moral order — a movement for 
which the communists, before turning reformists, shared the 
responsibility with the anarchists. Not until these doctrines 
are stripped of their violence will civilization in the true sense 
of the word be enabled uninterruptedly to continue its prog- 


§ 2] SOCIAL INFLUENCES 137 


ress. The countries of Southern Europe, where the lower 
classes have not yet attained the degree of moral progress 
which characterizes the North and West, are undoubtedly the 
most exposed to the consequences of such teachings. 

In any event, just as in a human organism which is recover- 
ing from some disease of the blood, there always remains a 
residuum of microbes in a state of latent activity, so in the 
social organism, there will always be individuals whose nature 
is criminal, there will always be moral lunatics, moral neu- 
rasthenics, and cases of atavism. Others, too, there will be 
of acriminal character not fully decided, and who lack 
merely energy or moral resistance; but these the good example 
of the majority will lead to good, just as an opposite example 
would have led them to evil. 


§ 2. The School 


Notwithstanding the undoubted benefits conferred by 
civilization as a whole, an examination of its several mani- 
festations will disclose that, taken singly, these elements 
have no appreciable effect upon criminality. 

One of the most important is the knowledge of reading and 
writing — an acquisition of inestimable value to the individual 
in the struggle for existence. And yet, if we think to find in 
literacy a counter-active of criminality, we shall meet an 
unlooked for disappointment. The practical interest of the 
question is the greater, inasmuch as the school and its work 
are subject to the control of the State, in whose power it lies 
to further or impede their progress or impart to their activi- 
ties whatever direction it pleases. 

It is supposed that ignorance is one of the principal causes 
of criminality. If such were the case, then criminality 
ought to diminish in proportion as illiteracy becomes less. 
Unfortunately, this is a conclusion not borne out by statistics. 
It is a matter of common knowledge that multitudes of crimes, 
such as forgery, obtaining money by false pretenses, and crimi- 


138 CRIMINOLOGY [§2 


nal bankruptcy, are committed by men who are not illiterate. 
Moreover, the extreme crimes are not any more uncommon 
among literates than among persons absolutely ignorant. 
Sometimes, even persons of a liberal education appear in the 
Courts of Assizes to answer well-founded charges of abortion, 
infanticide, or murder. 

In Italy, the percentage of criminality is greater at the 
present time than it was in 1860, when the school system was 
only in its beginnings. Today, in spite of the continually 
decreasing proportion of illiterates, the sum total of crimes 
increases at the rate of 3% per annum. 

The situation in France is shown by D’Haussonville’s 
conclusions from comparatively recent statistics. “In 1826,” 
he writes, “out of 100 persons accused of crime, 61 were illiter- 
ate and 39 had received some sort of an education. Today 
the proportion is reversed: 70 literates (in the most modest 
sense of the word), as against 38 illiterates. This difference 
is fully accounted for by the extension of primary instruction. 
But in view of the fact that the total number of crimes has 
increased rather than diminished, the only result of such 
instruction is to increase the number of literate criminals, 
without lessening the number of crimes.”’! To the same effect 
is the report of the Keeper of the Seals? for the year 1900: 
“From an educational standpoint the same thing is true of 
individuals with criminal instincts as of the people as a 
whole: illiterate in the past, they are able to read and write 
today.” 

“In Spain,” says Tarde, “where the illiterate count for 
two-thirds in the total population, they represent but one- 
half of the total number of criminals.” 

One need not be a pessimist to recognize, therefore, that the 
school is without direct influence in the diminution of crimi- 
nality, so far at least as the total number of crimes is con- 


939 


1 D’Haussonville, “Le combat contre le vice” (Revue des Deux Mondes, 
1 April, 1887). 
2 [Garde des sceaux”’: the Minister of Justice. — TRAnst.] 


§ 2] SOCIAL INFLUENCES 139 


cerned. The influence which it has is upon the kind of crimes 
committed, for in imparting knowledge and developing apti- 
tudes it may be determinative of criminal specialities. But 
this is a matter which falls outside the scope of our inquiry. 
We see, then, the ineffectiveness of this supposedly powerful 
weapon. The saying that for every school which opened, 
a prison would close, was never anything more than pure 
rhetoric. It is needless to dwell on this point. Even if we 
were without the figures to prove our conclusion, ought not 
simple good sense to tell.us that there is no connection be- 
tween grammar and morality, between an acquaintance 
with the alphabet and the possession of the noble or ignoble 
passions? As to the matter of higher education, we shall 
see later that this has no such effect upon moral development 
as is commonly believed.’ The popularization of classical 
instruction, it may be added, could only be fraught with 
disastrous consequences. Classical history in particular, as 
it is usually taught, is no more than a continual apology for 
immoralities and misdeeds ‘of every description. 

To be sure, a high degree of culture carries with it a pre- 
sumption of morality. But this presumption is due, not 
to the effect of cultural education upon moral development, 
but to the nature of the individual. The very attainment 
of a high degree of culture is proof of an intellectual nature, 
of a nature devoted to the ideal, contemning the pleasures 
and interests of the vulgar. Only by unceasing efforts is 
this stage of intellectual development to be realized. The type 
of mind which aspires to the high places of knowledge and 
has the strength and skill to surmount them, is wholly in- 
compatible with baseness of instinct. In this sense is to be 
taken the theory of Nietzsche, “that lofty spirituality itself 
exists only as the ultimate product of moral qualities; that it 
is a synthesis of all qualities attributed to the ‘merely moral’ 
man .. . that lofty spirituality is precisely the spiritualizing 
of justice, and the beneficent severity which knows that it 

1 See post pp. 157-158. 


140 CRIMINOLOGY [§ 3 


is authorized to maintain gradations of rank in the world, 
even among things — and not only among men.” ! 

Study has not moralized man; it is man’s spiritual nature 
which has moralized study. 

In ordinary cases the influence of the school upon morality 
counts for nothing. If the school were to contribute to moral 
instruction, the fact would be far otherwise. But, as is well 
known, in the Latin countries, and especially in the secular 
schools, there is little or no moral instruction. Moreover, 
it is not by pedagogic teaching that we can hope to reform the 
moral character. The only education which has influence 
upon the child is that afforded by examples of conduct. If 
the child sees in his own family only examples of vice and 
crime, all the good teachings of the school will prove un- 
availing. 


§ 3. Religion 


The religious emotions when aroused in early childhood 
have an undoubted effect upon morality. However faint may 
grow the traces which they always leave, these never entirely 
disappear, even in the break-down of faith. So vivid is the 
impression which the mysteries of religion make upon the 
imagination that rules of conduct imposed in the name of 
the Divinity may become instinctive; and this because, as 
Darwin says, “‘a belief constantly inculeated during the early 
years of life, while the brain is impressible, appears to acquire 
almost the nature of an instinct; and the very essence of an 
instinct is that it is followed independently of reason.” 2 
“The operativeness of a code of morals,” adds Spencer, “de- 
pends much more on the emotions called forth by its in- 
junctions than on the consciousness of the utility of 
obeying such injunctions. The feelings drawn out during 
early life towards moral principles, by witnessing the social 

1 Nietzche, “Jenseit von Gut und Bése,” § 219 [From Eng. transl. by 
Helen Zimmern, “Beyond Good and Evil” (Edinburgh and London, T. N. 


Foulis, 1909). — Transt.] 
2 Darwin, “The Descent of Man,” Part I, c. rv. 


§ 3] SOCIAL INFLUENCES 141 


sanction and the religious sanction they possess, influence 
conduct far more than the perception that conformity to 
such principles conduces to welfare. And in the absence 
of the feelings which manifestation of these sanctions arouse, 
the utilitarian belief is commonly inadequate to produce 
conformity.” Even in the higher races, he further observes, 
for the most developed men, in whom the sympathies that 
have become organic, produce spontaneous conformity to 
altruistic precepts, “the social sanction which is in part de- 
rived from the religious sanction, is important as strengthen- 
ing the influence of these precepts. And for persons endowed 
with less of moral sentiment, the social and religious sanc- 
tions are still more important aids to guidance.” 4 

The same author recognizes a harmful influence in anti- 
religious or anti-theological bias. To those who believe that 
it is a simple matter for associated men to conform to the 
principles of morality, he puts the question: “‘ How, then, 
can there be looked for such power of self-guidance, as in 
the absence of inherited authoritative rules, would require 
them to understand why, in the nature of things, these 
modes of action are injurious and those modes beneficial — 
would require them to pass beyond proximate results, and 
see clearly the involved remote results, as worked out on 
self, on others, and on society? ”’ ? 

That religion, therefore, may be one of the most active of 
the educational forces, is something which the positivists 
regard as beyond question. But its efficacy in this regard 
depends upon two conditions: first, that its influence be 
exerted upon the child, and secondly, that instruction in moral 
conduct be the true aim of its teachings. In many of the 
Roman Catholic countries, the second condition is almost 
non-existent. This is particularly true in the rural parishes, 
where an ignorant clergy, with the sole object of insuring the 
complete obedience of its parishioners, devotes its whole 
attention to the inculcation of certain formal observances 


_ 1 Herbert Spencer, “'The Study of Sociology,” c. x1. 2 Ibid. 


142 CRIMINOLOGY [$ 4 


utterly without relation to the matter of moral conduct,— 
the result being neglect of the sublime teachings of the Gospel. 
In the Protestant countries, however, the clergy have shown 
a much better understanding of their duties. Especially 
in the countries of the Anglo-Saxon race has the pastor made 
the teaching of moral principles a chief object of his calling. 
To him it is due that the cardinal principles of social conduct 
have so pervaded all the social classes of the English-speaking 
nations that a majority of the people is characterized by love 
of honesty and hatred of injustice and violence. 

One thing, however, must be noted. The power of religion 
over morality seems to fail precisely in the most serious cases, 
or in other words, when it encounters a decided criminal 
character. This is only to be expected. Without emotion 
on the part of the recipient, no useful instruction is possible. 
Now, how can we expect to arouse this emotion in a man 
whose moral sensibility, because of a defect in his psychic 
organization, is distirfctly under the normal? How, then, 
can we expect him to attain the pure ideality of religion? 

In conclusion, it may be said, that although religious 
teaching is of limited efficacy, its sphere of action is more 
extensive than that of education in general. It is a moralizing 
force which an enlightened government would do well to 
encourage and in no event can afford to impede. It is enough 
if the State remain neutral, but its hostility can work nothing 
but harm. Destruction of religious teaching would mean the 
taking away of a restraining influence which, be its strength 
greater or less, is at all times infinitely better than the com- 
plete absence of moral sanction. 


§ 4. Economic Conditions: the Socialist Thesis 


Next to be dealt with is a topic of a very different descrip- 
tion: the extent to which criminality depends upon economic 
conditions and especially upon the unequal distribution of 
the public wealth. 


§ 4] SOCIAL INFLUENCES 143 


The Thesis Stated. — According to the socialists, the col- 
lectivist régime would cause the most prolific sources of 
crime to disappear as by magic. By establishing perfect 
equality in the rewards of labor, by leveling all distinction 
between riches and poverty, the collectivist régime would 
effectually suppress every form of noxious cupidity, every 
anti-social activity. And this necessarily proceeds on the 
theory that the present condition of economic inequality, 
or, as the socialists term it, the capitalist régime, is the prin- 
cipal cause of the criminal phenomenon. 

For some of them, indeed, crime is nothing else than re- 
action against social injustice. The unequal distribution of 
goods condemns a part of the population to poverty and thus, 
depriving it of the means of education, reduces it to ignorance. 
The economic iniquity protected by the laws is the true crime 
— the provoking cause, if not the complete justification, of 
all other crimes.! Society is therefore the original offender. 
By producing unfortunates who can find no place at the feast 
of life — whom it thrusts from the brilliantly lighted banquet- 
table into the squalor of the gloomy street, it makes possible 
the existence of the malefactor. 

The fact is regrettable, but nearly all the socialistic writers 
come to similar conclusions. Almost always they charge 


1 There are socialistic groups which proclaim war against all social insti- 
tutions: “Society is constituted in a fashion at once absurd and criminal . . . 
The acquisition of any property through the labor of others is illegitimate. 
The rich must be placed under the ban of the ‘jus gentium,’ . .. Any 
manner of attack upon them is justifiable, not excluding fire or sword or even 
false witness.” (‘‘ Programme of the Black Hand” — Laveleye, “‘ Le socialisme 
contemporain,” p. 275, — Paris, F. Alcan, 1883). See also the admirable 
work of A. Zorli, “Emancipazione economica delle classi operaie ”’ (Bologna, 
1881). The pseudo-scientific socialism of today puts the exploitation of the 
working classes almost on the same level with murder. 

The idea that communism would mean the cessation of crime is by no 
means new. It is met with in the classic authors, whence it passed into the 
writings of Fénelon, was later adopted by Owen, and finally took its place in 
the doctrines of Bebel and the modern revolutionary socialists. Strangely 
enough, Enrico Ferri, in spite of his anthropologic tendencies, does not alto- 
gether reject it. See on this subject my “Superstition socialiste,”’ pp. 125-140 
(Paris, F. Alcan, 1895). 


144 ) CRIMINOLOGY [$ 4 


crime to what they allege to be an artificial and vicious 
organization of society. The modification, or rather the radi- 
cal reformation, of this organization would, they urge, result 
in reducing the number of crimes to a minimum and by gradual 
evolution, eventually work their complete disappearance. 

In the meantime, they cannot look upon the criminal as 
other than one of an oppressed class or upon crime as other 
than a symptom of class rebellion. For the honest majority 
of this class, for those who appear reconciled to their lot, 
many of these writers can find nothing but words of 
bitter contempt. “Of course,” so runs a typical utterance, 
full of spleen and paradoxes, “even the most poverty-stricken 
classes of society have their martyrs, types of idiotic Christian 
resignation, incapable of offense, blessing the hand that 
smites them. These, we know, constitute the ideal of an 
exploiting bourgeoisie, but their example is far from being 
to us a source of edification. Thus the workman, who, selling 
his labor for a pitiful wage, causes the wages of others to fall, 
betrays his kind and justifies the reaction which overtakes him. 
When privilege dominates, every act of rebellion is a human 
fact to be studied with human sentiments; and even where it 
assumes the odious form of crime, it is a useful symptom, 
since it points out the necessity of radical treatment.” ” 
It would seem to be a rather difficult matter — we might say, 
in passing — for the exponents of this theory to explain why 
it is that the poor no less than the rich are exposed to the 
depredations of the criminal. A strange revolt this in which 
attack is directed indifferently upon friends and enemies! 

The Question Considered. — This brings us to the principal 
question, namely: whether the so-called “economic iniquity,” 
a condition by which all citizens are either proprietors or 
proletarians, is the chief cause or, at least, one of the most im- 

1 Owen, followed by Bebel and others, holds to the view that in a collecti- 
vistic society, criminality, properly so called, would have no existence; there 
would be “acts opposed to the social welfare,” but only as the effect of disease 


Persons thus afflicted are to be placed in an asylum, etc. 
2 F. Turati, “Il delitto e la questione sociale” (Milan, 1883). 


§ 4] SOCIAL INFLUENCES 145 


portant causes of criminality... The sense in which I employ 
the word “crime”’ is already known to the reader; the meaning 
of the word “proletariat” as describing the state to which, 
because of its unfortunate exigencies, this theory attributes 
the great majority of crimes, requires, however, some exami- 
nation. The proletarian is an individual without landed 
property, who has no means of subsistence other than his man- 
ual labor. For this he receives a wage ordinarily paid by the 
day, its amount being determined by the value of those articles 
which, at a given time and in a given society, represent for 
him the strict necessities of life. Any capital which may result 
from his savings causes the proletarian to pass into the class 
of proprietors.” 

Now, it cannot be denied that the proletarian, in a greater 
degree than any other member of society, is exposed to suffer 
privation. If the wage, which is his sole means of subsist- 
ence, fail even for a single day, hunger may be the result. 
This result may be followed by his stealing to procure bread, 
either for himself or his family. Such is the case of Jean Val- 
jean in “Les Misérables.” I shall not go to the length of 
saying with a French writer that Jean Valjean is not a real 
figure, — that “there does not exist in France any such town 
as Faverolles, where an honest workman with a reputation 
for industry and known for his acts of kindness to a widow 
and orphans, could not have procured some assistance in 
case of urgent need.” * On the contrary, I believe it possible 
for such a situation to exist, but I do say that a case of this 
kind is extremely rare. In the Rzhanoff tenement, one of the 
largest habitations of the poor in Moscow, Count Tolstoi 
found but one person actually in want of food — a sick woman 


1 The case of England furnishes the first answer in the negative. Here 
the economic inequalities are extreme and yet criminality is decreasing con- 
stantly and rapidly. This fact shows that criminality depends upon causes 
quite other than the distribution of the public wealth. 

2 Such is the definition given by Block, ‘Dictionnaire de la politique.” 

8 Adolphe Franck, “Philosophie du droit pénal,” p. 147 (Paris, F. Alcan, 
1880). 


146 CRIMINOLOGY [$ 4 


iM / 

who said that she had had nothing to eat for two days. 
Scarcely any one needed immediate assistance. “We find 
here,” he says, “just as among ourselves, people more or less 
good, more or less bad, more or less happy, more or less 
miserable. Their happiness does not depend upon external 
circumstances; it lies wholly in themselves, and no gift of 
money can further it.” * In our present state of civilization, 
times of crisis apart, scarcely any man who earnestly seeks 
work but is able to find it. If he has the misfortune not to 
find it, almost always some helping hand is extended from his 
immediate surroundings. 

No doubt real indigence does exist, but its cause is generally 
a lack of courage and industry. It is then accompanied by a 
kind of apathy which “demands nothing more than the con- 
servation of animal existence.” ? Its result is usually men- 
dicancy and not crime, —for crime always necessitates a 
certain effort, and this the individual, exhausted by suffering, 
is wholly incapable of making. The immense majority of the 
working classes is by no means reduced to any such condition. 
It suffers, not from the pangs of hunger, but rather from its 
inability to procure the pleasures which it sees enjoyed by 
those more favored of fortune. In the great cities, especially, 
is the cup of Tantalus thus perpetually at its lips. 

But the proletarian is not alone in experiencing the pains of 
privation. Needs are relative to desires; desires are relative 
to individual conditions. The man who works for a wage 
feels poor in relation to the man who employs him, the small 
proprietor in relation to the large proprietor, the clerk in 
relation to his head of department. According as we ascend 
the social scale, the wealth and position of each successive 
class dwarf those of the class next below. He who is owner of 
a million of capital envies his neighbor who enjoys a million 
of income: he is quite likely to entertain toward him the same 
feeling of cupidity which the tenant-farmer entertains to- 


1 Tolstoi, “Que faire?” (Paris, 1887). 
* Eugéne Beret, “De la misére des classes laborieuses” (Brussels, 1842). 


§ 4] SOCIAL INFLUENCES 147 


ward the owner of the lands which he works. Now, just as 
this feeling of cupidity may impel the peasant to steal wood, 
it may impel the tenant-farmer to cheat his landlord, the 
cashier to falsify his accounts, the rich merchant to defraud 
his creditors, or the wealthy land-owner to forge a will by 
which he hopes to add to his possessions. The sentiment of 
cupidity exists in all men in a greater or less degree. But 
what makes this sentiment capable of leading to crime is not 
the peculiar economic condition surrounding the individual, 
but his own psychic condition. In other words, there must be 
on his part a complete absence of the instinct of probity 
coupled with a disregard for his good reputation. The 
latter element is not to be overlooked, because the desire to 
preserve a good reputation will often enable persons without 
an innate sense of probity to resist criminal temptations. 
Manifestly, then, the disappearance of poverty would not 
prevent the continued existence of these peculiar psychic 
conditions; the social factor of crime would reappear under 
other forms; the lazy thief of today would become the labor- 
hating workman of tomorrow. The only situation in which 
we could suppose the disappearance of crimes due to cupidity, 
would be one where the offender no longer sees any profit 
in committing them. But such a situation is not easily 
imagined. Let the economic system be what it may, the pos- 
sibility of an illicit profit is never excluded. A collective 
possession of the public wealth with an equal right in all the 
workers to the profits of their toil, would be no better than 
any other system in this respect. Every law can be evaded, 
and one must be ingenuous indeed to believe that a man so 
disposed could not find means of acquiring an undue advan- 
tage at the expense of his neighbors (even though under a 
different form than money) in the phalansteries of Fourier 
or the agricultural and industrial establishments of Cabet. 
In my opinion, the equal distribution of profits will never be 
practicable. Moreover, a considerable section of the socialists, 
in spite of their collectivist dreams, admit the division of 


148 CRIMINOLOGY [§ 4 


profits according to the quality of the work, substituting thus 
for the principle of absolute equality, that of the just compen- 
sation of labor. What then? The economic inequality would 
still cause honest activity to be shadowed by the activities 
of evil; the thirst of gain remaining, there would be the same 
stimulus to crime. And if, in lieu of money, the workman 
were to be paid in labor certificates (“bons de travail’’), 
authorizing him to draw from the public stores goods to the 
extent of his services, would this mean an end of the idle 
and vicious? Unwilling to acquire these certificates by lawful 
means, the idle and vicious would use fraud and violence. 
The principle that each is to consume only in proportion to 
his production notwithstanding, the evil-inclined would find 
a thousand ways to live at the expense of others. The discon- 
tented, the dregs of society, would always be present. Lying, 
fraud, and oppression on the one hand, feebleness and sloth 
on the other, would not cease to exist. The calm and equable 
temperament would not cease to encounter the temperament 
which is excitable and neuropathic. We can look for no such 
change in human nature. 

The proletariat is a social condition quite as much as the 
conditions which overlie it. The complete absence of capital 
by which it is characterized (without taking into account the 
exceptional cases of lack of the necessaries of life, that is to 
say, shelter, food suited to the climate, and, in cold countries, 
fuel) is a permanent economic condition which is nowise 
abnormal for those who are habituated to it. It constitutes a 
condition of stress only for those whose needs and desires 
are not met by their daily wage. But if in lieu of the word 
“wage” we use the word “income,” quite the same stress 
may exist, and for an analogous reason, in the capitalistic 
classes. There is nothing to show that the disproportion 
between desires and the means of satisfying them is any greater 
in any one class than in another. If people of wealth eat 
well and drink well, says Tolstoi, “that does not prevent 
them from being just as unhappy as the poor. They also are 


§ 4] SOCIAL INFLUENCES 149 


dissatisfied with their position, regret the past, and desire what 
they have not. The better position which they keep ever 
in view is the same which the dwellers in the Rzhanoff tene- 
ment sigh after, namely, a situation in which they can work 
less and profit more from the effort of others.”’! In crossing the 
chasm which separates the proletarians from the proprietors, 
it even seems that in the case of the latter the increase of 
desires outruns the increase of their fortune, because of their 
more frequent opportunities of knowing and appreciating the 
refinements of luxury and comfort, and of seeing what lacks 
for their full enjoyment of life. 

If, then, the economic stress, understood in this relative 
sense, is not proportionately greater in the very lowest class, 
there is no reason to suppose that cupidity is more actively 
felt in this class than in the others, or that the criminal im- 
pulses are not equally potent in all the social classes. It is 
true that theft, the crudest form of attack upon property, 
is much more prevalent among the lower classes, but this fact 
is counterbalanced by the forgeries, embezzlements, and 
criminal bankruptcies of the higher classes. And both sorts 
of offense are but varieties of one and the same natural 
crime — merely different forms, dictated by the different 
social conditions, in which an extreme degree of cupidity 
comes to light — merely effects produced by absence of the 
same nature of moral restraint. Common speech, which 
translates the public conscience much better than do the 
terms of the law, has a single name for all offenders of this 
description. No less than to the vagabond who steals a watch, 
it applies the word “thief” to the cashier who absconds with 
the funds entrusted to his care, the merchant guilty of fraudu- 
lent bankruptcy, or the public officer who allows himself to 
be bribed. In a different class of society, the man who is 
guilty of petty theft would have been a fraudulent promoter, 
a defaulting bank-teller, or a lawyer who embezzles his 
clients’ money. 

1 Tolstoi, “‘Que faire’ (Paris, 1887). 


150 CRIMINOLOGY [$4 


Thus falls of its own weight the argument upon which the 
socialists place their chief dependence. Confining their atten- 
tion to larceny, which they find more prevalent among the 
poorer classes, they come to the conclusion that crimes against 
property would cease with the disappearance of poverty.! 
They should speak not of the proletariat but of economic 
distress — a result attributable to the excessive disproportion 
existing in all the social classes between desires and the 
means of satisfying them, rather than to the unequal distri- 
bution of natural wealth. It is the fact of this distress which 
explains why, so long as illicit activity will be useful, that is 
to say, so long as it will be found a source of gain, crime will 
not cease to exist among immoral men, — and to these all 
the social classes contribute in an almost equal degree. We 
are speaking, be it understood, of that fundamental and not 
superficial immorality, which is the source of crime. 

We have said that the social classes contribute to crime 
in nearly equal proportions. What then are the facts in this 
regard? Were there statistics showing the social status of the 
various offenders, the truth of the statement would be capable 
of exact demonstration. Then the figures themselves, per- 
haps, would show the error of this widespread idea that pov- 
erty is one of the principal causes of crime. But unfortunately 
these figures are not ready to hand: to obtain them approxi- 
mately we must proceed by induction. Thus, dealing for the 
present only with such crimes as are directly actuated by 
cupidity, we may compare the number of those crimes which 
are in general committed by members of the lower classes, 
with the number of those which in all probability are due to 
persons less unfortunately cireumstanced. Taking some of the 
commoner forms, we find, according to the Italian statistics 
of 1895, that in this year there were tried 10,024 cases of extor- 


1 See, for example, Turati, op. cit., p. 9%. ‘The fact that nearly all the 
thieves are recruited in the lower classes,” he asserts, “so completely estab- 
lishes the relation between crimes against property and social inequalities, 
that even the bourgeois sociologists do not venture to dispute it.” 


§ 4] SOCIAL INFLUENCES 151 


tion and robbery and 15,705 cases of theft accompanied by 
circumstances of aggravation (“vols qualifiés ou commis 
avec des circonstances aggravantes’’),! making a total of 
25,729 crimes, which for the most part we may presume to have 
been committed by proletarians; although in the number of 
extortions are included many for which the Camorra and 
Mafia are responsible, — and these organizations are di- 
rected, not by indigent persons, but by men whose means are 
sufficient to enable them to live comfortably, quite apart 
from the profits of their dishonest activities. As against these 
figures, the same statistics show 850 cases of counterfeiting 
money, current paper, government bonds, seals and stamps, 
and forgery of official documents, commercial paper, and pri- 
vate writings, and 1,688 cases of criminal bankruptcy — an 
aggregate of 2,675 crimes which, partly from their intrinsic 
nature, partly from the difficulties attendant upon their 
execution, cannot in general be attributed to the indigent 
classes. These crimes are the effect of cupidity, precisely as 
are the crude aggressions upon property to which we give the 
names of theft, robbery, and extortion. For the purposes of 


1 [In the French and kindred systems, theft unaccompanied by certain 
aggravating circumstances is simple theft (“vol simple’’); where these 
circumstances exist it is aggravated theft (“vol qualifié’’). According to the 
French law, circumstances of this kind attendant upon a theft, “relate (1) to 
the means employed in its commission: violence; climbing (“escalade’’); 
breaking and entering (“effraction’’); the use of false keys; the carrying of 
weapons; threats to make use of a weapon; impersonating a public officer; 
(2) to the place of its commission: public highways, dwelling houses; (3) to 
the time of its commission: the fact of night-time; (4) to the number of the 
offenders: the fact that more than one person takes part in the offense; and 
(5) to the character of the offender: thefts by domestics, workmen, innkeepers, 
or carriers (“‘voituriers’’) (Garcon, “Code pénal annoté,” I. p. 1183, note 5). 
In Italy, however, the grouping of aggravating circumstances under two 
categories, by the Code of 1889, results in the recognition of three classes of 
theft: simple, aggravated (“aggravato”’), and super-aggravated (“qualifi- 
eato”’). “It may be said that simple theft (“furto semplice’’) is that un- 
accompanied by aggravating circumstances of either category; aggravated 
theft (“furto aggravato”’), that accompanied by circumstances which, in rela- 
tion to simple theft, render the punishment more severe; super-aggravated 
theft (“‘furto qualificato’’), that accompanied by circumstances which, in 
relation to aggravated theft, cause the punishment to bestillfurther increased.” 
“Digesto Italiano,” XI—@, p. 1031). — TRAnst.] 


152 CRIMINOLOGY [$4 


comparison, therefore, we have two homogeneous quantities. 
On the one hand, we have 25,729 crimes of proletarians, 
on the other, 2,675 crimes of proprietors. The former thus 
constitute about 91% of the whole number. 

The next step is to ascertain the proportion of proletarians 
in the total population of Italy. According to published 
reports of the census of 1901, the number of persons registered 
as proprietors exceeded four millions. We must, however, 
remember that the larger part of these is made up of peasants 
whose sole property consists of a tumble-down dwelling and 
an acre or two of land. Registered as proprietors are many 
hundreds of thousands of persons who pay annually in direct 
taxes less than five francs. If we take the families whose 
heads are in a position which implies some degree of comfort — 
government officials and civil servants, persons holding sala- 
ried places outside of the public service, teachers, clergymen, 
lawyers, physicians, artists, musicians, as well as capitalists, 
“rentiers,”’ and pensioned employees — and add the number 
of individuals therein comprised, we obtain a total of about 
2,536,200 persons. Even if we add further about a million 
rich farmers and merchants, factory owners and managers, 
stock-brokers, and the like (most of whom, indeed, have 
already been taken into account in our former total), we shall 
still fall short of four millions. But retaining the last-men- 
tioned figure for the purposes of the argument, we have this 
result: that in Italy the people of assured economic position, 
who are not obliged to depend upon a daily wage, comprise 
less than one-eighth of the total population, which in 1901 
was 32,475,253,—the actual proportions being 88% of 
proletarians to 12% of proprietors. It follows, therefore, 
that as against 91 proletarian crimes, we have 88 proleta- 
rians — a difference which is hardly appreciable. 

Are we not therefore warranted in concluding that even with 
respect to that species of crime whose reason is directly 


1 Ministero di Agricultura e Commercio, Direzione generale della statistica, 
General Census of Population of 10 February, 1901. 


§ 4] SOCIAL INFLUENCES 153 


economic, the share of the proletariat is very much the same 
as that of the other classes? And is it not also plain that as a 
factor of criminality, poverty may be said to count for no 
more and no less than the economic stress of the upper 
classes — a stress, moreover, which will continue to exist 
until it is possible not only to assign to each an equal share of 
the natural wealth, but also to prevent any one man from 
earning more than another? 

If such is the case as to crimes against property, what is to 
be said of the wider contention of some of the socialists that to 
poverty is due criminality in general, including crimes against 
the person? Here their efforts are more labored. They begin 
by declaring that “in crimes against the person, the influence 
of a vicious social organization is less apparent.” ! Never- 
theless, “the subtle influence of misery, directly or indirectly, 
penetrates into all crime.”” Misery goes hand in hand with the 
lack of education, and this gives rise to “bad examples, ill- 
requited honesty, impairment of nervous strength, the unre- 
strained sway of the basest passions, inability to weigh and 
consider, and the permanent failure to satisfy vital demands — 
the various elements whose secret fermentation is productive 
of crime.” 

But there is one thing which this argument quite over- 
looks. The lack of moral education is not confined to the lower 
classes. In spite of the care bestowed upon the training of 
children, this same lack is often to be found among the classes 
whose economic position is assured. As has been shown 
above, the work of instruction is not always successful. 
Hundreds of examples prove that criminal propensities are 
equally prevalent in all the social classes. 

In the upper classes, even murder is by no means as rare 
as might be thought. The space of a single year will often 
yield many conspicuous instances. At Bologna, a brother 
and sister are accused of murdering the latter’s husband, 
in complicity with her lover, — for the reason that the victim 

1 Turati, op. cit., p. 96. 


154 CRIMINOLOGY [$4 


was not the intellectual equal of his wife — a motive to which 
was probably joined the desire of getting possession of the 
husband’s estate. The father of the two principals is a well- 
known physician of means. The accomplice is likewise a 
physician. Some months afterwards, at Bari, a sea captain 
just returned from China is charged with killing his wife, by 
shooting her while she slept, — solely for the purpose of getting 
rid of her. The case occurs at Milan of a well-known stock- 
farmer who invites to his house a wealthy acquaintance to 
look over his pictures. Upon his arrival the unsuspecting guest 
is seized, bound, and forced to sign certain bills of exchange. 
This done, he is turned over to an ex-convict to be suffocated 
in a vapor bath. A leading citizen of Palermo, formerly a 
member of the Chamber of Deputies, is held under arrest for 
upwards of three years, charged with murdering in a railway 
carriage a director of the Bank of Sicily. A clerk whose 
mother has mysteriously disappeared is accused of her murder 
and released only after the elapse of many months, merely 
because the fact of her death cannot be proved. A law- 
student of the University of Rome is committed for trial before 
‘the Court of Assizes, for having killed a fellow-student in the 
night-time with the object of robbery. In the Court of As- 
sizes appears, as a prisoner, a wealthy member of an aristo- 
cratic French family, to answer the charge of murdering the 
illegitimate child of his wife. Desiring to put the infant out 
of the way, he had taken it to a remote place on the coast, 
where from the top of a steep cliff, he had thrown it into the 
sea. Some years later, another Frenchman — a manufacturer, 
this time, — takes his young wife to the very same place and 
gets rid of her in exactly the same manner, — first having 
insured her life in his own favor. — These few cases have been 
discovered by chance. How many others must there be 
which have never been brought to light? Discovery is espe- 
cially difficult where the people involved are clever and far- 
sighted, and possessed of the means to buy silence and to 
travel to distant countries. 


§ 4] SOCIAL INFLUENCES 155 


The morality of the lower classes is not in general very 
refined, but the most elementary, the least developed moral 
sentiments are all that are needed to keep them from crime. 
In these classes, just as in the higher classes, murder is an 
exceptional fact. Their lack of education can have in general 
no other effect than a rudeness of feeling (‘‘rudesse”’), that 
is to say, a lesser degree of sensibility to the moral sufferings 
of others, an honesty which is somewhat more elastic. Mark 
Tolstoi’s poor, the peasants and workmen described by Zola. 
Some of them, to be sure, are criminals, but at their very first 
appearance, care is taken to tell us of their antecedents, to 
explain the causes of their exceptionally perverted natures. 
We meet with others, again, who are exceptionally virtuous. 
No doubt, the great majority of the characters in “L’Asso- 
moir” and “La Terre” are beings for whom we can have but 
little sympathy, who even inspire us with feelings of disgust. 
Sometimes they are disloyal and uncharitable, completely 
taken up with their own selfish interests, and devoid of the 
slightest trace of idealism, but, on the other hand, they: never 
look to crime as the means of gratifying their passions, and 
even if the occasion presents, they never succumb. 

So long, therefore, as a majority of the population will 
possess in common a certain sum of the instincts and repug- 
nances of which I have spoken in a previous chapter, these 
instincts and repugnances will be hereditarily transmitted in 
all classes alike, rich and poor, learned and ignorant, and will 
be strengthened by tradition, examples, and family education. 
We are not here concerned with that delicacy of feeling which 
is the moral appanage of a comparative few, any more than 
with the virtues or the noble and generous sentiments. We 
have to do solely with a negative quality, that is to say, re- 
pugnance for a determinate number of acts, the immorality 
of which is universally recognized in the lower as well as in 
the higher classes of the population. 

If it be true that the moral instincts are the evolutionary 
resultant of countless experiences of utility undergone by 


156 CRIMINOLOGY [$4 


past generations, it would seem to be plain that experiences 
of the inutility of murder, theft, and similar crimes, must have 
been taking place quite as constantly in the lower as in the 
higher classes of society. The instinct of pity, as also a certain 
very crude instinct of probity, appears in the lowest walks 
of life. We find there the same repugnance for bloodshed, 
the same aversion to violence and treachery, which are found 
in higher places. The process of evolution which above has 
pursued an even course and has there given birth to delicacy 
of sentiment, is arrested or hindered below; here, morality is 
confined to a few aversions, a very limited number of senti- 
ments, but these aversions and sentiments are encountered 
in an equal measure, an equal proportion, both above and 
below; individuals destitute of this rudimentary morality 
are equally rare and abnormal at the bottom as at the top of 
society. Poverty, no doubt, is an obstacle to education, and 
the want of education prevents moral development, but poy- 
erty does not necessarily bring about the total absence of 
sentiments like those of benevolence and justice. Proof 
of this assertion has already been furnished and that, too, 
in the very field where its truth has most often been challenged, 
that is to say, in connection with the instinct of probity. 

And now for proof that criminality in general is not due 
to proletarian conditions. In the year 1895, 8% of those 
convicted of felonies (“‘crimes”) and misdemeanors (“délits’’) 
in Italy were persons classed as land-owners, farmers, managers 
of business enterprises, salaried employees, government offi- 
cials, capitalists, and “rentiers,” or as engaged in the liberal 
professions or the fine arts—a proportion by no means 
flattering to the middle classes, if we stop to consider that 
the misdemeanors comprised a multitude of petty agrarian 
thefts, such as the stealing of fruit, fire-wood, etc., which 
could only have been committed by persons in indigent cir- 
cumstances, and ought not really to figure in the criminality of 
the country. And yet, regard being had to their respective 
numbers in the population, the proportion of poor is little dif- 


§ 4] SOCIAL INFLUENCES 157 


ferent from that of the rich and well to do. The number from 
the higher classes convicted in the Court of Assizes is pro- 
portionately smaller, but this, to my mind, has but one 
meaning. It tends more and more to confirm belief in the 
common remark that money may serve to defeat the ends of 
justice. Too often are verdicts influenced by the eloquence 
of some gifted advocate whom only the rich can afford to 
employ, or — what is a much more threatening evil, — by 
sordid barter and sale.!. Nevertheless, we learn from the 
prison statistics for 1900, that in the penitentiary establish- 
ments of Italy there were then 3,102 persons (being one-tenth 
of the total number of inmates) who did not come from the 
proletarian classes, since they are described as “rentiers,” 
merchants, bankers, innkeepers, brokers, salaried employees, 
government officials, clergymen, or members of the liberal 
professions. This gives us a proportion — 10% — which 
almost equals the proportion of proprietors to the total 
population.” 

Turning now to the matter of education, we encounter a 
host of facts which prove that the ignorance which almost 
always goes hand in hand with poverty is without effect upon 
the criminal phenomenon, — that this is wholly independent 
of social condition or individual culture. For instance, if 
we take the persons convicted of criminal offenses who were 
inmates of the Italian penitentiary establishments in the year 
1900, and classify them according to trade or profession, 
we find the most poverty-stricken and ignorant group to be 
that of the agricultural classes, who constituted 28.9% of 
the whole. This is a proportion very much less than that which 
these classes bear to the total population, since, according to 
the census of 1901, they numbered 16,836,557 out of a total 
population of 32,475,253. 


1 Unfortunately, there is such a thing as the professional juryman. There 
are places where he plies his trade almost publicly, and where he sometimes is 
known even to have a fixed scale of charges. 

2 “Statistica delle carceri per gli anni 1899 e 1900,” (Rome, 1902). 

* Tbid., p. x. 


158 CRIMINOLOGY [§ 4 


Again, in Germany (according to statistics of 1896), the 
liberal professions contribute a much larger quota than does 
the agricultural class to the number of crimes involving 
fraud and breach of trust. On the whole, the class which is 
there most productive of criminality is that of persons en- 
gaged in commercial and industrial pursuits. In France, 
persons engaged in commerce and members of the liberal pro- 
fessions are more largely represented than the agricultural and 
manufacturing classes in the more serious crimes against the 
person. Moreover, in 1900, the agricultural class, which 
comprises “a little less than one-half of the actual popula- 
tion of France, counted only for one-fourth in the number 
of accused having any sort of trade or profession. . . . The 
criminality of the commercial class (one of the farthest 
removed from illiteracy) constitutes 15% of the total crimi- 
nality of the country, although this class represents but one- 
seventh of the whole population.”! As for the liberal 
professions and the public service, we find the number of 
crimes ascribed to their members to be nearly double that 
of the agricultural class. _D’Haussonville, in remarking upon 
the small number of persons of superior education among the 
accused, has, strangely enough, forgotten to take into ac- 
count the proportion existing between this small number and 
the small number of liberally educated persons in relation to 
the entire population.” 

It therefore becomes plain that there is, in general, a lesser 
degree of criminal activity, and, in particular, a lesser degree 
with respect to the more serious offenses, among the very 
people who form at once the poorest and most ignorant 
portion of the population. In fact, this agricultural class 
comprises in France, besides the owners of small farms, more 
than a million tenant-farmers (“fermiers et cultivateurs’’) 
and upward of two million agricultural laborers and farm- 


1 “Compte général de l’administration de la justice criminelle pendant 
Vannée 1900,” p. xxvii (Paris, 1902). 
2 “Le combat contre le vice”” (Revue des Deux Mondes, 1 April, 1887). 


§ 4] SOCIAL INFLUENCES 159 


servants (“journaliers, hommes des peines et garcons de 
ferme’’). It goes without saying that women and children 
are not included in these figures. Everywhere, as is well 
known, but more particularly in France, the poverty and 
ignorance of the peasant are in marked contrast to the educa- 
tion and comparative comfort of the city workman. What, 
then, can be answered by those who believe in the effective- 
ness of literacy and economic well-being as counter-agents 
of crime, when they are told that out of every 100,000 persons 
accused of crime, the manufacturing classes furnish 24% 
and the commercial classes 27%, as against the contingent of 
8% attributable to the agricultural classes? 

But there are still other facts which tend to a more direct 
demonstration. On the one hand, in France the wages of 
workmen underwent an increase of 459% between 1853 and 
1871; the consumption of wheat, estimated in 1821 at an 
average of 1 hectolitre 53 per capita rose to 2 hectolitres 11 
in 1872; the consumption of meat, which was 20 kilogrammes 
8 in 1829, increased to 25 kilogrammes 1 in 1862. On the other 
hand, the number of pupils in the primary schools which was 
57 per 1,000 in 1832, attained a proportion of 122 per 1,000 
in 1877.1 

What then of public morality? — has it kept pace with this 
remarkable growth in the general prosperity and education? 

Between 1826 and 1878, as has been estimated, the total 
number of felonies (“crimes”) and misdemeanors (“délits’’) 
_ more than tripled. Since then, the increase in wages and the 
progress of popular education have been unabated, yet the 
tide of crime did not cease rising until 1895.2 It began to 
ebb only in 1896, and then by no means on account of the 
spread of prosperity and education (in this respect there 
is no appreciable difference between the period from 1891 to 

1 See “‘Le combat contre le vice ” (Revue des Deux Mondes, 1 April, 1887). 

2 In France, from 1861 to 1865, the annual average of convictions for 
felonies (“‘crimes”’) and misdemeanors (“‘délits””) was 95,357. In the period 


from 1891 to 1895, this average rose to 130,412, but in the ensuing five-year 
period fell to 124,806. 


160 CRIMINOLOGY [§ 4 


1895 and that from 1896 to 1899), but as the direct result of a 
group of statutes which were enacted, to quote from an official 
report, “with the object of making exceptionally severe 
the punishment of incorrigible offenders, while rendering 
possible an early release from custody of such prisoners as 
exhibited tendencies to reformation.” 

It cannot be said that the increase in criminality up to 
1895 is attributable either to the increase of wealth or to the 
spread of education, but, on the other hand, the figures 
which we have been considering make it equally plain 
that poverty and ignorance are not the true causes of 
crime.! 

At this juncture we may look for an objection. 

If criminality is not the effect of the economic condition 
of the proletariat, how do we account for the constant rela- 
tion which, as shown by statistics, exists between the number 
of thefts, on the one hand, and the abundance of harvests and 
the price of breadstuffs, on the other? This is a well-known 
statistical law, which has been the subject of repeated con- 
firmation. In Bavaria, for example, it was observed that 
in a population of 100,000, every increase or diminution of 

1 Van Kan in “Les causes économiques de la criminalité” (Paris, 1903), 
is disposed to doubt the accuracy of my figures with respect to the middle 
classes and the proletariat. In dealing with France, I have taken my data 
for the present edition from the ““Compte général de la justice criminelle 
pendant l’année 1900,” without having had to change in the least my former 
conclusions. As for Italy, Van Kan acknowledges that he has not been able 
to obtain direct access to the figures, whereas I have indicated the source of 
my data and believe them to be exact. In this edition I have taken advantage 
of the first published extracts of the census of 1901 as well as of the prison 
statistics for 1900. 

What particularly impresses Van Kan, is Marro’s estimate that the proprie- 
tors in Italy constitute 27% of the non-criminals, as opposed to 9.4% of the 
criminals. I cannot, however, admit the first of these figures, since it would 
make the proprietors more than one-fourth and almost one-third of the total 
population. My own result, taken from the official census, seems much more 
probable. The estimate made by Fornasari de Verce, again, errs in its 
conception of what constitutes the proletariat. Besides 56% of indigent 
persons, there are others amounting to 32.15% who have only the strict 
necessaries of life. I fail to see why these latter should not be included in the 


proletarian class. For proletarianism does not mean indigence: it means only 
the total lack of capital. 


§ 4] SOCIAL INFLUENCES 161 


six kreutzers in the price of cereals was attended with a 
corresponding increase or diminution of one in the whole 
number of thefts. Similar results attended observations in 
Sicily for the period from 1875 to 1895. But another phe- 
nomenon which nearly always accompanies this last, must 
not be forgotten. Fluctuations in the price of grain affect 
crimes against the person in just the opposite manner to 
crimes against property. Thus in Bavaria, the fall in the 
price of foodstuffs was marked by an increase in offenses 
against the person and vice versa.! Similarly, in Prussia in 
the year 1862, when the price of many kinds of food- 
stuffs was very high, the proportion of crimes against prop- 
erty was 44.38%, and of those against the person 15.8%; 
upon a fall in prices, the former descended to 41%, and 
the latter rose to 18%. And if the movement of rise or fall 
in prices is not confined to a single year but continues for 
any considerable period, we may generally look for the one 
form of crime to follow the progress of prices, while the other 
form correspondingly moves in the opposite direction. If 
the impulse, the occasional cause, the object of theft were 
to be absent, theft itself would no longer exist. But this would 
bring no basic modification in social immorality: it would 
simply cause the form of criminal activity to undergo a decided 
change. Abundance of food and drink would cause the pas- 
sions to be more easily excited, and since the greater number 
of crimes against the person are immediately due to the effect 
of passion, it is plain that crimes of this character would 
become much more numerous. The workman who had dined 
well and had no economic fears for the morrow, would straight- 
way go forth in search of amusement, — and this would 
frequently be amusement of that questionable sort which 
leads to brawls and bloodshed. 

Thus, while France’s improvement in social well-being, as 
shown by the increase of wages, and the greater consump- 


1 Mayr, “La statistica et la vita sociale,” pp. 556, 557 (2d Italian ed., 
Turin, 1886). As to Sicily, see a study by A. Niceforo (Rome, 1897). 


162 CRIMINOLOGY [$ 4 


tion of wheat, wine, and alcoholic liquors,' resulted, from 
1836 to 1869, in the diminution by one-fifth, of crimes against 
property; on the other hand, crimes more especially directed 
against the person, showed, during the same period, an increase 
of more than one-third.? These figures conclusively prove that 
the oscillations in the always unstable economic equilibrium 
are not the real cause of criminality, but merely determine the 
form under which it manifests itself. They may be compared, 
in their effect upon the social organism, not to the microbe, 
which, accidentally introduced into a healthy body, infects 
and destroys it, but rather to the cold wind or the damp 
dwelling which hastens the outbreak of phthisis, or to the 
violent exertion or emotion which brings about the premature 
rupture of an artery. Had those causes never been brought to 
bear, the subject would sooner or later have succumbed to 
phthisis or arterio-sclerosis. In the same way, the circum- 
stances which make life easier or harder, do but determine 
at a given moment, under a certain form and in a special 
manner, the manifestation of this immorality which, sooner 
or later, would have come to light in the form of crime. 

In relation to criminality, the variations in the social 
environment and the economic fluctuations which are often 
their result, produce a phenomenon similar to that of the ocean 
tides. The movement of the tides neither increases nor dimin- 
ishes the volume of water; it is nothing more than the water 
alternately advancing and receding. Thus the variations in 
question, — and especially those variations which recur at 
fixed intervals, such as the seasons of the year, — cannot be 
said either to increase or diminish the total volume of crimi- 
nality. 

It has long been recognized that the maximum, in summer, 
and the minimum, in winter, of crimes against the person 


1 The consumption of wine doubled from 1829 to 1869; that of alcohol 
increased more than three-fold from 1829 to 1872. 

2 Ferri, Studi sulla criminalita in Francia dal 1826 al 1878, pp. 39, 40 
(Rome, 1882). 


§ 4] SOCIAL INFLUENCES 163 


coincide respectively with the minimum and maximum of 
crimes against property (Quételet). Urged by the needs of the 
moment, the criminal activity prefers to fasten itself upon a 
single object, to the disregard of everything else. It is this 
which explains the constant relation between the increase of 
one species of crime and the decrease of another. Although 
immorality is often limited to the absence of but one of the 
elementary moral instincts, yet we not uncommonly find 
improbity combined with inhumanity in the same individual. 
The best proof of this is the fact, shown by the statistics of 
recidivism, that the most varied forms of crime may alternate 
in the case of the same individual — a fact, too, which com- 
pletely refutes those juridical theories which would have the 
penal law direct its attention to none other than special 
recidivism. 

This transformation of crime from one species to another, 
because of the vicissitudes of seasons and the abundance or 
scarcity of crops, with the attendant fluctuations in prices, 
may appear strange, but it is a phenomenon which we are 
obliged to take into account. We are equally compelled to 
recognize the similar effect produced by annual variations in 
temperature and the persistent rise and fall of prices during 
a series of years. Thus, in France, the crimes of murder, rape, 
and wounding (“blessures’”’) showed a progressive increase 
during a period of five consecutive years, — from 1848 to 
1852, — which, as evidenced by the extremely low prices of 
meat, wheat, and wine, was a time of general prosperity.! 

All the facts, therefore,.concur to render untenable the 
position of the socialists. The easier life and increased comfort 
of the lower classes have not effected a diminution in the total 
sum of criminality. On the contrary, the increase of wages 
and the extension of education in the second half of the 1800s, 
have been accompanied by a marked increase in some of the 
more serious forms of crime. “Thus it is curious to see,” 
says a French writer, “how cupidity grows with riches, and 

1 See Ferri, “‘Socialismo e criminalita,”’ p. 77. 


164 CRIMINOLOGY [§ 4. 


how, likewise, keeping pace with the progress of urban life 
and the increasing freedom in sexual relations, the sexual pas- 
sions increase in force, as is attested by the immense number 
of indecent offenses. There could scarcely be a better illus- 
tration of the truth that desire feeds upon its own satisfac- 
tion.” ! 

From what has been said up to this point, the two follow- 
ing conclusions may be drawn: 

(1) The present economic order, that is to say, the distri- 
bution of wealth, as it exists today, is not a cause of criminal- 
ity in general. 

(2) The fluctuations which are wont to occur in the eco- 
nomic order may bring about the increase of one form of crimi- 
nality, but this increase is compensated by the diminution of 
another form. These fluctuations are, therefore, possible 
causes of specific criminality. 

There remain to be considered endl abnormal economic 
disturbances as are attendant upon commercial crises, famine, 
floods, wars, and revolutions. Events of this description, 
inasmuch as they totally alter the usual conditions of life, 
wear the appearance of true occasional causes of criminality. 
To them would seem to be due manifestations of the criminal 
phenomenon, which otherwise, under normal conditions, would 
perhaps not have occurred, because of the absence in the 
social environment of impulsions sufficiently strong to deter- 
mine immoral individuals to commit the anti-social act. At 
first glance this view appears to be confirmed by past experi- 
ence. An immediate increase in the number of robberies, 
homicides, and crimes of fraud has nearly always followed 
upon the heels of sudden disturbances of this description. 
And yet a closer study of the question would probably result 
in altering our opinion. Under such circumstances, it is 
true, statistics do show an increase in the more serious crimes. 
But after all, perhaps even here nothing more is really signified 


1G. Tarde, “La statistique criminelle du dernier demi-siécle ” (Revue 
philosophique, January, 1883). 


§ 5] SOCIAL INFLUENCES 165 


than achangeinform. To my notion, neither flood nor famine 
necessarily increases the number of criminals; what it does 
is merely to turn the vagabond or sneak-thief into a foot-pad, 
just as a war or revolution, perhaps, will do no more than trans- 
form the common thief into a brigand. The question then 
would seem to be purely one of specific criminality — increase 
on the one hand, diminution on the other; although the 
gravity of the crimes subject to increase causes the com- 
pensatory decrease to be felt but little. This, moreover, is 
a mere opinion, which I have no means of supporting with 
actual figures. 

No doubt a political, social, or economic crisis may be 
the occasional cause of crime, since it makes harder the 
struggle for existence under all its aspects. Nevertheless, 
there is every reason to believe that the want of moral in- 
stincts (an indispensable condition of crime) will always en- 
counter at some time or other, in the various contingencies 
of life, some impulsion which will bring about the manifesta- 
tion of the criminal phenomenon. 


§ 5. The Same: Theory of Direct Proportion between 
Crime and Material Prosperity 


The conclusions which we have just arrived at are wholly 
at variance with the socialist thesis: as it has seemed to us, 
the economic condition of the proletariat — that is to say, the 
lack of capital or savings — is entirely without influence upon 
criminality as a whole; its influence is exerted only upon 
certain special forms which constitute the specific criminality 
of the lower classes, just as the other forms constitute the 
specific criminality of the classes possessing a better economic 
position. Extreme indigence ordinarily results in mendicancy, 
sometimes in vagabondage; the only crimes for which it is 
clearly accountable are such trivial offenses as the stealing 
of fire-wood, articles of food, and other objects of insignificant 
value. 


166 CRIMINOLOGY [$5 


The Theory Stated. — We doubt if it has occurred to the 
reader that an almost opposite thesis could seriously be 
urged, namely, that the increase of well-being, of work, of 
business, in short, the whole advance of material prosperity, 
brings with it a proportional increase in the number of crimes. 
And yet this theory of the proportion between evil activity 
(crime) and honest activity (commerce, industry, and affairs) 
is one which is not without its adherents. It rests upon the 
principle that when the latter increases, there necessarily is a 
fillip to the former, so that the increase in crime would be 
merely apparent, if it were exactly in proportion to the prog- 
ress of honest activity. With ‘this as his starting point, 
Poletti, in no spirit of hostility to civilization, comes to the 
conclusion that to the last is due the increase in criminality 
which has appeared almost everywhere in Europe, — in 
France, since 1826; in Italy, since 1865.!_ This result, however 
singular, is nevertheless logical. If we admit his premise 
that an increase in the number of crimes proportionate ex- 
actly to the increase in material progress, is without impor- 
tance, signifying in reality that crime is stationary, then it 
follows that an increase in crime proportionally less than 
the increase in prosperity, really means that crime has dimin- 
ished. We might therefore find in a given period double the 
number of crimes of the preceding period, and at the same 
time be obliged to recognize an actual diminution in criminality. 

This idea is not entirely new. Under a slightly different 
form it has for many years been a subject of debate. “‘Civiliz- 
ation, which is merely the progress of liberty,’ wrote Lucas 
in 1828, “widens the abuse of liberty, precisely because it 
extends its use. To obtain an exact notion of the morality 
of civilization, we must, instead of contrasting liberty and 
civilization, place in one side of the balance the use, and in 
the other, the abuse of liberty. Let us establish the rule 
that the morality of civilization is to be judged by comparing 
the use with the abuse.” This principle once posited, he sees 

1 See following chapter. 


§ 5] SOCIAL INFLUENCES 167 


little ground for alarm in the larger number of certain classes 
of offenses appearing in France, as compared with Spain: 
“We are not called upon,” he says, “to give especial credit 
to a poverty-stricken and ignorant people because of the 
small number of harmful acts occurring in their midst. This 
fact is due to the lack of occasion for inflicting harm; to noth- 
ing else than an animal-like ignorance. The greater number of 
such acts occurring among civilized peoples is merely the 
result of a larger development of human liberty.” 

Taking issue with such a view, Romagnosi vigorously 
denied that a civilization thus capable of augmenting crime, 
could be a real civilization: “Does civilization consist solely 
in more commodious dwellings, more elegant apparel, a larger 
number of taverns, the development of industries, and the 
like? By no means. What constitutes the true civilization 
is moral, economic, and political perfectionation. . . . It is 
said that crime increases with progress. One might as well 
say that sin increases with progress in piety; that diseases 
multiply with the regular development of a sound body; 
that as men become more industrious and grow in mutual 
respect and friendliness, so increases the number of the idle, 
vicious, and criminal.” ! This answer, however, does not meet 
the question. No one would venture to assert that civilization 
in this high sense of the word is productive of increased 
criminality. But such is not the scope of the theory under 
discussion. It refers only to economic and industrial progress, 
— with which individual morality has no necessary connec- 
tion. Inits support statistics are adduced showing the increase 
of crime as compared with the expansion of commerce, the 
multiplication of industries, and the increase in the public 
wealth. And with these figures as a basis, the attempt is 
made to establish a constant relation between the two series 
of progressions. 

The Theory Considered. — Noting that Poletti’s statistical 


1 Romagnosi, “Observations statistiques sur le compte rendu général de 
l’administration de la justice criminelle en France pendant |’année 1827.” 


168 CRIMINOLOGY [$5 


matter is now old, — his work having been published in 1882, 
— we may look at the arguments which he advances. 

French statistics show that from 1826 to 1878 there was an 
increase of crime at the rate of 100 to 254. This is merely 
a numerical increase and not a proportional increase. To 
obtain the latter, it is necessary to compare this increased 
sum of the criminal energies with the other energies which, 
under the impulsion of the same factors, have contributed 
in an ever-increasing degree to the conservation of society and 
the growth of its operative power. Criminal activity is merely 
the residuum of the social actions obtained by a process of 
elimination, in which all the just actions, viz., the activities 
of production and conservation, of morality and law are set 
aside. Although it is impossible even approximately to 
determine the sum total of the last, we can nevertheless 
ascertain their more certain and important effects. 

Thus the author compares the increase of criminal activity 
in France with the increase in the activities of production 
and conservation, during the period from 1826 to 1878. He 
finds: (1) that during this period imports increased at the 
rate of 100 to 700, and exports almost in the same measure; 
(2) that the treasury balance (indicating the national finan- 
cial power) showed an increase from 109 to 300, proportion- 
ately; (3) that the real and personal property transmitted by 
inheritance, which in 1826 was valued at 1,346 millions, had, 
by 1869, attained a value of 3,646 millions; (4) that transfers 
of real property “inter vivos” had doubled in value; (5) 
that in 1876 the charitable institutions were able to make dis- 
bursements for relief in an amount four times as great as in 
1833, while between these years the capital of the mutual 
benefit societies had increased five-fold; (6) that the annual 
average of the wheat crop rose from 60 million hectolitres in 
1825-1829 to 104 million in 1874-1878; (7) that from 1853 
to 1871 wages increased almost one-half (45%); (8) that 
the consumption of wheat, estimated at 1 hectolitre 53 per 
capita in 1821, attained the figure of 2 hectolitres 11 in 1872, 


§ 5] SOCIAL INFLUENCES 169 


while the consumption of alcoholic liquors almost doubled 
between 1831 and 1876; (9) that although, from 1841 to 
1878, the quantitative criminality increased at the rate of 
100 to 200, still, if we are to judge by the public force deemed 
necessary to maintain order (the incremental rate of which 
was only from 100 to 135), social security remained about the 
same at the end of this last-mentioned period as at its be- 
ginning. 

From the foregoing data the author concludes that in the 
period from 1826 to 1878 the social activities of France un- 
derwent a prodigious development; that in fact they may be 
said to have increased three-fold. The increase in the proceeds 
of taxation as from 100 to 300 constitutes the surest synthetic 
expression of this general increase. The destructive or crimi- 
nal energies increased not at the same rate, but in a propor- 
tion somewhat less — as from 100 to 254. It results, then, 
that during the period in question there was not an increase 
but a positive diminution of criminality. 

Turning to Italy, he finds that there convictions for crime 
between 1863 and 1879 showed an increase of 70%. On the 
other hand, the rate of increase in the commercial movement 
of Italy between 1862 and 1879 was from 100 to 149 in the case 
of imports, and 100 to 183 in the case of exports; the funds 
raised by taxation, which amounted to 617 millions in 1866, 
reached thesum of 1,228 millions in 1879, while, during the same 
period, the balances of the communal treasuries doubled in 
amount, and those of the provincial treasuries increased four- 
fold; from 1863 to 1875 the funds of the charitable institutions 
increased by 38 millions; the capital of the savings banks 
which amounted to 188 millions in 1863, rose to about one 
billion in 1881, having become quadrupled during the last 
two years of this period. Notwithstanding, therefore, the 
laborious transformation of the country which had been tak- 
ing place during the years under investigation, — a transfor- 
mation in which there were occurring many exceptional 
circumstances favorable to the development of criminality, — 


170 CRIMINOLOGY [$5 


the conclusion is, that the increase of the latter was not pro- 
portionate to that of the social activities. 

Poletti professes to see in these examples the confirmation 
of his law that criminal activity in relation to honest activity 
develops in a proportion which continues stable so long as the 
causes which produce the two sorts of activity remain con- 
stant. The time of this constancy of causes the author calls 
the “criminal period.” During such a period, he continues, 
the fluctuations in the quantum of criminality are inconsider- 
able, not exceeding one-tenth, more or less, of the average 
number of offenses committed in the same lapse of time, 
while from one period to another, as the effect of increase in 
honest activity, the proportionate quantum of criminality 
tends to a slow and progressive diminution.! According to the 
author such a result necessarily follows, because the develop- 
ment of the intellectual faculties and the economic activities, 
as well as the general social perfectionation enhance the 
power of resistance to crime. This, moreover, is proved by the 
increasing number of ill-nourished unfortunates in Northern 
Italy, who fall victims to pellagra, or prefer to emigrate or 
commit suicide, rather than risk resort to crime as a means of 
bettering their condition. 

The theory in question is highly ingenious, and its appear- 
ance of truth is such as to make it especially appeal to those 
who are on the outlook for arguments to justify their own 
temperamental optimism. “Summed up,” says Tarde, 
“it consists in appraising criminality as one would judge the 
safety of a means of locomotion. To determine whether crimi- 
nality in France has grown or lessened during the past fifty 
years, it would have us proceed exactly as we would to de- 
termine whether the modern railway passenger travels with a 
greater or less degree of safety than did his grandfather of, 
say 1830, who made his journeys by stage-coach. Just as in 
the latter case we solve the problem not by comparing the 


1 Poletti, “Tl sentimento nella scienza del diritto penale,” c. vi (Udine, 
1882). 


$5). SOCIAL INFLUENCES 171 


number of travelers killed or injured under the two kinds 
of travel, respectively, but by ascertaining the number respec- 
tively killed or injured out of the whole number carried, so 
in the present case, this theory obliges us to proceed by saying, 
for example, that in 1830, for so many transactions likely to 
afford occasion for criminal breach of trust, there was one crime 
of this character prosecuted annually, while at the present day 
there is one such crime to a different number of such transac- 
tions. Why not add, that in consequence of the greater facili- 
ties for social intercourse and the more dangerous allurements 
of urban life, the enormous increase of adultery witnessed 
of late years is in no way surprising, and is really proof of 
an actual improvement in feminine virtue?” ! 

A close examination of Poletti’s argument shows that its 
whole rationale is based upon a decidedly arbitrary idea, 
namely, that to a given number of honest acts must corre- 
spond a proportionate number of crimes, and that this propor- 
tion is constant, except in times of crisis and social transfor- 
mation. In his own words, “As long as a society lives under 
equal and invariable conditions, the relative number of crimi- 
nal acts will remain the same. .. . In its relation to the 
social forces, criminality will in all cases adjust itself pro- 
portionately to the sum of their activities.” 

But where are we to go for this proportion? To France, 
where the economic development is much greater, and the 
amount of crime much less, than in either Italy or Spain? 
To England, where criminality is constantly on the decrease, 
notwithstanding the extraordinary increase in population, as 
well as in commerce and industry? Or to some other country 
of Europe, — but which? 

Does this proportion vary with different nations and accord- 
ing to their difference in social condition? If so, then all com- 
parison fails between nation and nation, and we are left wholly 
without means of verifying the truth of the law which Poletti 
thinks to have discovered. 

1 G. Tarde, “La criminalité comparée,” p. 73 (Paris, F. Alcan, 1886). 


172 CRIMINOLOGY [$5 


The theory is untenable in another respect. It is impossible 
to compare the social value of a criminal offense with that of a 
moral economic fact. “It is wholly illogical,’ says Ferri, 
“to analyze and compare the respective growths of two such 
dissimilar activities with the aid of percentage and statistics 
alone. How can we be sure that a 600% increase of commerce 
represents proportionately three times as much as a 200% 
increase in crime? I am unable to accept any such theory. 
To my mind, an increase of 10% in the number of crimes is 
something of much more vital import from the social stand- 
point than an increase of 30% in the exports of cotton and 
cattle.” ! 

“Both in its facts and the inferences which it seeks to draw 
therefrom,” says Tarde, “the preceding calculation could 
hardly be more erroneous. In its facts, because it is not true 
that to a six-fold increase in crimes involving breach of trust, 
to a seven-fold increase of indecent offenses, there has cor- 
responded a parallel multiplication of occasions calculated 
to give rise to such crimes. In its inferences, because, as it 
seems to me, with respect to criminal offenses as a whole, 
they involve a confusion of ideas. To continue my comparison, 
nothing is gained by demonstrating that railways: are the 
least dangerous mode of travel, or that gas is the least harmful 
means of illumination. The fact remains that a Frenchman 
of 1826 ran less risk of meeting death by accident of travel, 
less risk of being burned to death, than does his descendant of 
the present day. Half a century ago there were fifteen acci- 
dental deaths for every 100,000 inhabitants; today there are 
thirty-six. This is due to the inventions of the latter-day 
civilization. Nevertheless, the average span of life on the 
whole has not been shortened. Indeed, I am aware that it is 
generally believed to be on the way to prolongation, but this 
is a notion which serious study of statistics has shown to be 
unfounded. All that we know is, that a man has now fewer 


1 Ferri, “Socialismo, psicologia e statistica nel diritto criminale ” (Archivio 
di psichiatria, scienze penali, etc., Vol. IV, No. 2). 


§ 5] SOCIAL INFLUENCES 173 


chances than formerly of dying in his bed, but quite as many of 
dying in other ways. For the evils which follow in their train, 
the inventions of civilization have also brought us remedies. 
So too, have they brought us remedies for the needs and 
covetous desires which they have created or aroused — 
incentives to crime as well as to industry. But however 
it may be compensated, an evil is an evil, in itself nowise 
lessened by its accompanying good. If the one can be wholly 
detached from the other, this is clear; if they are forever in- 
dissoluble (a supposition, it may be hoped, for which there is 
no ground), then it is still clearer. To me, it is of little concern 
that the safety of travel has increased or that the morality of 
affairs has improved, when the morality of men, be they 
travelers or merchants or what not, has deteriorated (or 
appears to have deteriorated) to the extent of one-half or 
two-thirds. In proportion to a given sum of affairs, it may be 
that the number of crimes has not increased, — I may even 
concede that it has diminished, — but does a French citizen 
today run less risk, yes or no, of being cheated or robbed 
than he did fifty years ago? That and not a mere abstraction 
or metaphor is the thing of vital concern. Can it be aught but 
an evil, a distinct and positive evil, that any class or division 
of citizens, however active or occupied, should now furnish 
a contingent to the criminal ranks thrice and six times its 
former size, — as witness the case of persons engaged in in- 
dustrial pursuits and that of married women? And, granted 
that the development of commerce has increased in the ratio 
of more than two to one during the past forty years, can it be 
aught but an evil that in this space of time, the number of 
commercial failures has doubled? That this evil was far from 
being inevitable, in spite of the purely arbitrary principle 
which is Poletti’s starting point, is clearly shown by the fact 
that a lesser evil, that of commercial litigation, has diminished 
since 1861, notwithstanding the continued growth of business. 
Civil litigation of other kinds, strangely enough, preserves 
regularly the same level in the face of the growing complexity 


174 CRIMINOLOGY [$5 


of interests, the multiplication of contracts and agreements, 
and the increasing tendency to division of landed property. 
Yet, ‘a priori,’ what would seem more plausible than to regard 
the increase of civil or commercial litigation as a constant 
and necessary sign of prosperity, of civil and commercial 
activity? What is true of internal affairs is true of external. 
- To civilization is it due that occasions of war were never so 
numerous or important as from 1830 to 1848— the most 
peaceful period of the 1800s.” ! 

Crime is undeniably an activity: it represents a sum of 
energies which appear side by side with the other energies of 
society. But because the sharper and the forger live among 
upright merchants, why should they increase in number, 
according as the rewards of honest trade are more easily 
acquired? Ought we not to expect the very opposite result? 
Does it not seem that the broader fields open to honest 
activity and the greater success which attends it, should 
constitute motives sufficient to attract thither a greater num- 
ber of persons, many of whom no doubt would otherwise 
have found their source of income in unlawful expedients? 
When, therefore, we are confronted by the fact that notwith- 
standing a country’s economic progress, criminality is in- 
creasing, although at a slower rate than the march of this 
progress, does it not seem fair to conclude that without the 
expansion of honest activity, the number of criminal offenses 
would have undergone a still greater increase? And such a 
result, of course, would-be diametrically opposed to Poletti’s 
conclusion. 

It is impossible to believe that progress in civilization con- , 
tributes to the increase of crime. On the contrary, we cannot 
escape recognition of the fact that, to the extent of diminishing 
the habitual development of crime, its effect is quite the op- 
posite. The clear stream of honesty by its gathered strength 
and speed carries with it the waters which otherwise would 
have been drawn into the foul torrent of criminal activity. 

1 Tarde, op. cit., p. 74 et seq. 


§ 5] SOCIAL INFLUENCES 175 


At any rate, it cannot be denied that from 1826 to 1895 
criminality in France (as in Italy and elsewhere) showed 
not only an absolute increase, but an increase relatively to the 
increase in population. In thirty years alone, from 1866 to 
1896, the average annual number of felonies (“crimes” 
and misdemeanors (“délits’”) rose from 245 to 345 for each 
100,000 inhabitants. This is the only proportion important 
to consider — the proportion of crimes to the number of in- 
habitants. The greater or less activity and wealth of the 
population count for nothing in determining the question of 
increase or diminution in criminality. If in place of ten crimes 
we find fifty, manifestly there is an absolute increase of crime. 
And if its increase surpasses that of the population, then it is 
equally plain that we have a proportional increase of crime. 
The relation in which its fluctuations or its tendencies to 
increase or diminish stand to the various social activities can 
be important only as denoting the influence which these activi- 
ties respectively exercise upon the special forms of criminality. 
It can never afford ground for contending that the total num- 
ber of crimes has diminished, when in fact it has increased. 

Nor is it true that the increase of any species of activity 
is always attended by an increase in its abuse or in the faults 
incident to its exercise. Tarde expresses himself thus on the 
subject. “ ‘It might be supposed’ says Block, in his ‘Statis- 
tique de la France comparée avec les divers pays de |’Europe,’ 
‘that the increase in the number of letters carried by the 
Post-office (following the reduction of the postal rates of 1848), 
would have brought about an increase in the number going to 
the Dead-letter Office. Such however was not the case.’ 
Then follows a table from which it appears that during the 
period from 1847 to 1867, the number of dead-letters dimin- 
ished not only proportionally, but even absolutely, to the ex- 
tent of about one-fifth, notwithstanding the fact that in 1867 
there were 342 million letters posted, as against 125 million 
in 1847,— both the increase on the one hand and the dim- 
inution on the other having been gradual. . . . And it is 


176 CRIMINOLOGY [$5 


not to be supposed that the postal officials had become more 
honest or intelligent, or the public more careful. With an 
equal degree of honesty, intelligence, and care, the faults de- 
creased, while the activity continued to increase. A further 
example even more in point is also afforded by the Post-office. 
In 1867 the number of registered letters was two and one-half 
times as large as in 1860, yet the number annually missing 
(that is to say, probably stolen) during these seven years under- 
went a progressive decrease from 41 to 11; nor is there any 
reason to believe that the honesty of the Post-office employees 
had in any way changed. If we were to adopt Poletti’s point 
of view, we ought, ‘a priori,’ to look for exactly the opposite 
result. But in reality the matter is easily explained. If I 
may be permitted a rather commonplace simile, I would com- 
pare a society always more or less disposed to transgress its 
own laws to a horse, somewhat weak in its forelegs, and hence 
ready to fall. To prevent the animal from falling the best 
plan is to make him strike a faster gait. The faster he goes the 
less he stumbles. This is a rule with which all drivers are 
familiar. The engine-driver likewise knows the value of a 
full head of steam on a bad track. The faster you spin a top, 
the longer it remains in a vertical plane. These are a few 
examples from among a thousand, of a mobile equilibrium 
whose stability depends on the degree of speed. In the same 
manner, if you stimulate a nation’s production, its civilization, 
its regular activity, then, always supposing that its propensity 
to evil remains unchanged, you diminish the volume of its 
crime. If, then, we suppose the number of crimes, in spite of 
the progress of civilization, — and this unfortunately is our 
own case, — to show, if not a relative increase, at least an 
absolute increase, we are thus warranted in concluding that 
there must have been a still greater increase in the force of 
the criminal propensities.” 

Summary of Conclusions. —To sum up, it may be said that 
the increase of a people’s productive activity in nowise tends 
to an increase in its criminality. Statistics show us that one 


§ 5] SOCIAL INFLUENCES 177 


beneficent effect of civilization is to specialize criminality, 
to limit it to certain special forms, the practice of which be- 
comes the peculiar industry or profession of the refractory 
classes. It follows that in a nation of a high degree of advance- 
ment, criminality tends to contract its boundaries and to be- 
come concentrated in a single class, as is shown by statistics 
of recidivism. But this movement of concentration is ex- 
ceedingly slow; it will be accomplished not in the present 
generation, but only after the lapse of many centuries. In 
any event, it behoves us to take care how we bring any such 
charge against civilization as to assert that its progress is 
promotive of crime. 

But we must not demand of it the impossible. Civilization 
does not create the criminal; it is without the power to destroy 
him. He existed before civilization, — for was not Cain his 
ancestor? He profits by civilization only to change the ex- 
ternal form of his crime. Since the invention of railways, 
the criminal can no longer stop the stage-coach on the open 
road. But he adapts himself to the changed conditions: 
he becomes a passenger himself, travels in a first-class carriage, 
to all appearances a gentleman, and awaits a favorable oppor- 
tunity to chloroform his sleeping fellow-traveler or throw 
him out of the carriage window. If criminality has increased 
in a large measure and in a proportion exceeding that of the 
population, the fault is not to be attributed to civilization any 
more than to the unequal distribution of wealth. For the 
causes we shall have to seek elsewhere. 


‘CHAPTER III 
INFLUENCE OF THE Laws 


$1. Legislation Affecting the Causes of Crime. 
§ 2. Penal Laws. 


§ 1. Legislation Affecting the Causes of Crime 


From our last topic of discussion it is an easy transition 
to the question of the influence exercisable upon criminality 
by the law-making power of the State. But the problem itself 
is a complex one and requires us at the outset to distinguish 
between two classes of laws, namely, (1) those whose direct 
object is the prevention or repression of crime, and (2) those 
which, although aiming directly at another end, may never- 
theless affect criminality in an indirect way. It will be con- 
venient to speak first of the latter. 

Modification of the Environment — Quételet and Lacassagne. 
— Is it not possible for the State to change or abolish certain 
social facts, certain institutions, certain modifiable conditions 
of the life of the people as a whole or of a given class of society 
— environmental elements recognized as the most frequent 
occasional causes of a great many offenses—and by this means 
effect a diminution in criminality? For if the moral imperfec- 
tion of the criminal is always the necessary condition of crime, 
external circumstances are very often the causes which deter- 
mine its manifestation. Some of these external causes are due 
to the physical environment, and this it is not in the power of 
man to modify. Every one understands the helplessness of the 
legislator in the face of climatologic and meteorologic condi- 
tions. But let the fact be social and not physical, and the cry 
is at once raised that the law-maker can suppress it if he will. 


§ 1] INFLUENCE OF THE LAWS 179 


“Change the established order,” exclaims Quételet, “and 
with it will quickly change the constantly recurring facts of 
which we complain. . . . Here the law-maker can fulfill a 
noble mission. By modifying the ambient in which we live, 
he can ameliorate the condition of his fellows. Let me 
breathe a purer air, modify the ambient in which I am forced 
to live, and you will give me a new life. However strong my 
moral constitution, it may nevertheless be impossible for me 
to resist the deleterious influences with which you surround 
me. .. . Your institutions tolerate, nay, even encourage, a 
multitude of snares and pit-falls, and if in a moment of 
weakness I suffer myself to be entrapped, then it is that you 
smite me. Should not your effort rather be to make less 
dangerous this precipice along whose edges I am forced to 
grope my way, or at least, to dispel the darkness from my 
perilous path?” ! 

Lacassagne makes a similar appeal: “To the immobilizing 
fatalism, which is the inevitable consequence of the anthro- 
pologic theory, rises in opposition the social initiative. If 
the environment, which is everything, is sufficiently defective 
to favor the development of vicious and criminal natures, 
then it is to this environment and the conditions of its opera- 
tion that reforms must be directed.” ? 

All this no doubt is very admirable. It is based, however, 
upon an utterly false notion of State omnipotence. It com- 
pletely ignores the fact that society, like any natural organism, 
undergoes a development which is slow and gradual, a develop- 
ment in which the law-maker is a minimum factor. But what 
of the practical side of the question? Has this, at least, been 
approached? For if crime is a symptom and its cause is 
recognizable, it is the business of a good system of social 
therapeutics to deal with this cause, provided that it is ca- 
pable of yielding to treatment. In this lies the whole question: 
What are the means? 


1 Quételet, “Physique sociale,” Book IV. 
2 Actes du ler Congrés d’ Anthropologie criminelle, p. 167. 


180 CRIMINOLOGY [$1 


Romagnosi’s Theory of Prevention of Crime. — Romagnosi, 
one of the greatest of Italian thinkers, referring the most 
common and constant causes of crime to defects in (1) sub- 
sistence and (2) education, — appertaining, respectively, to the 
economic and moral orders, — and (3) vigilance and (4) jus- 
tice, — appertaining both to the political order, — was the 
first accurately to define the limits of governmental action 
in seeking remedies for such defects.! In his view, the action 
of the State in this regard must seldom be anything but 
negative. Destroying privilege and monopoly, it should 
allow the untrammeled expansion of commerce and the 
unhampered development of industry; it should put no ob- 
stacles in the way of individual enterprise, nor subject free 
labor to any species of tutelage. All this, he believes, can be 
brought about by prudent social and economic legislation 
and a wise administration of justice. 

The only positive action which Romagnosi demands of the 
State, is the adoption and enforcement of iron laws against 
idleness, together with the active and unremitting surveil- 
lance of the dangerous classes of society. Idleness for him is a 
true social crime. To make it inexcusable, however, work 
must be given to all who seek it. “It is therefore necessary 
that the State provide work and wages, or else indicate sure 
and practical means of obtaining them.” ? With an optimism 
which is contradicted by experience, he believes that the 
number of seekers for this State-provided work would be 
inconsiderable, and would constantly grow less.2 The ex- 
pense, according to him, would be a small matter, but, he 
hastens to add, whatever its amount, the State is called upon 
to bear it, just as it must bear the expense of a standing army. 
*“‘As the army defends us from external and remote enemies, 
so the establishments, of which we speak,’ will defend us from 
internal enemies — enemies who dwell in our midst, attack 


1 Romagnosi, “‘Genesi del diritto penale,” § 1021 et seg. to § 1155. 
2 Ibid., § 1098. 3 Ibid., § 1102. 
4 J. e. public industrial establishments. 


§ 1] INFLUENCE OF THE LAWS 181 


us from ambush and keep us in a state of continual 
alarm.” 

The last word yet remains to be said on this contention. 
Vigorously assailed by Malthus, who maintained that it con- 
tradicted the most obvious laws of supply and demand, and 
subjected to attack by many subsequent writers, it presents 
a question still unsolved in theory, possibly, as Fouillée 
suggests,'! because of the opposite exaggerations character- 
izing the views of the socialists, political economists, and 
Darwinists. 

“Manifestly,” says this last author, “the State cannot 
undertake in a vague and general way to give work to all 
who apply, to furnish physicians with patients, lawyers with 
clients, and poets with a public: it cannot engage in business 
as wholesale ironmonger, milliner, cabinet-maker, or interior 
decorator. In a word, it cannot substitute itself for the indi- 
vidual, or artificially create employment for those who lack 
it. Nor can it artificially continue the production of a given 
species of commodity when the inactivity of the market an- 
nounces an excessive supply.? On the other hand, the State 
should never grant assistance to able-bodied persons except 
under certain specified conditions, — in particular, to prevent 
increase in the number of indigent, that of abstention from 
marriage.” 

Proposals of Ferri. — These are serious questions, and their 
discussion would lead us too far afield. Apart from the ques- 
tion of State-provided work, Romagnosi’s views can be easily 
accepted. But latterly Ferri has made an attempt to specify 
further instances in which the State should seek the prevention 
of crime by suppressing or making less frequent certain 
social facts which are ordinarily its occasional causes. He 
proceeds on the theory that it is the duty of the State to ascer-: 
tain what sources of criminality exist among the institutions, 


1 Fouillée, ““La philanthropie scientifique’’ (Revue des Deux Mondes, 
15 September, 1882). 

2 Fouillée, “La propriété sociale et la démocratie,” p. 134 (Paris, Hachette, 
1884). 


182 CRIMINOLOGY [$1 


customs, and prejudices of the people, and having found them, 
to effect by special laws, their disappearance, or at least a 
diminution of the evil to which they give rise. ‘Throughout 
all its legislative, economic, political, civil, administrative, 
and penal institutions, from the highest to the lowest, it 
should always be the object of the State to impart to the social 
organism such an adjustment that human activity may be 
thereby continually guided in a channel directly opposite to 
that of crime. This it may accomplish by giving individual 
energies the freest possible hand and at the same time di- 
minishing temptations and occasions of crime.” 4 

To these means of indirect prevention, Ferri gives the name 
of “substitutes for punishment.” It would be just as appro- 
priate, remarks Tarde, “to call them ‘substitutes for crime.’” 
Neither, perhaps, is right. It is difficult to see an equivalent 
of crime in a governmental action which, among its other 
effects, is calculated to prevent the manifestation of crime. 
And still less does that action strike us as an equivalent of 
punishment, for punishment is not called into existence until 
crime has been committed. But without stopping to debate 
this question of words, let us examine the practical programme 
which Ferri submits. 

His plan involves nothing less than the complete making 
over of a whole system of social and economic legislation. 
He recommends establishing free exchange of commodities, 
whereby, he thinks, unusual advances in the price of bread- 
stuffs would be obviated and many criminal acts, in conse- 
quence, prevented; the abolition of government monopolies, 
a step which in his view would result not only in the 
disappearance of offenses against the revenue laws, but 
also of many other species of crimes; and the removal of 
certain taxes whose existence is a source of continual agita- 
tion. Since the abuse of strong drink is a fertile cause of 
poverty, disease, and crime among the working classes, 


* E. Ferri, “Nuovi orizzonti del diritto e della procedura penale,” p. 376 
(Bologna, 1884). 


§ 1] INFLUENCE OF THE LAWS 183 


he demands, with Despine and Lombroso, the imposition of 
duties upon the manufacture and sale of alcohol. He proposes 
also the doing away altogether with paper money, and the 
use in its stead of gold and silver coin, with the object of mak- 
ing counterfeiting more difficult; the construction of inex- 
pensive but sanitary dwellings for the working classes; in- 
stitutions to provide care and assistance for the infirm poor; 
workmen’s savings banks which by encouraging accumula- 
tion would tend to lessen crimes against property; wider 
and better lighted city streets, the effect of which would be 
to discourage nocturnal crimes of violence. Infanticides and 
abortions, he thinks, would be diminished by a popularization 
of Malthusian doctrines. He advocates better laws on the 
subject of descent of property, the acknowledgment of illegiti- 
mate children, and the ascertainment of paternity, as well 
as legislation providing for divorce and damages for breach 
of promise of marriage, all of which would tend, in his opinion, 
to counteract unlawful cohabitation, infanticide, adultery, 
bigamy, uxoricide, and offenses against chastity. With the 
object of rendering criminal bankruptcies less frequent, he 
would also reform such provisions of the commercial laws as 
relate to the personal liability of officers of corporations, the 
procedure in cases of commercial failures, the rehabilitation of 
bankrupts,! etc. Further proposals are the supervision of the 
manufacture of deadly weapons, so as to limit their use; the 
institution of juries of honor to prevent resort to the duel; 
the prohibition of pilgrimages; marriage of the clergy, sup- 
pression of convents, the abolition of many holidays (“‘fétes”’), 
the institution of public gymnastics, public baths, theatres, 
foundling asylums, the prohibition of obscene publications 
and accounts of notorious trials, the exclusion of young 
people from the spectator’s benches in the criminal courts, 
and other like measures calculated to influence public moral- 


1 [In France and Italy, bankruptcy (“‘faillite”; ‘‘fallimento”’), apart from 
any question of crime (see ante, p. 41, note 1), involves the suspension of va- 
rious political and civil rights. — TRanst.] 


184 CRIMINOLOGY [$1 


ity in general and to counteract certain classes of crime in 
particular. 

Conclusions. — It is far from my idea to belittle the great 
utility of a wisely conceived legislation in the prevention of 
crime. But we must steer clear of the notion that the law- 
maker can work any such Utopian transformation as to effect 
the disappearance of temptations and the occasions of crime. 
Moreover, Ferri himself acknowledges that a large proportion 
of crime is due to causes quite other than those which we have 
just been considering, causes which lie out of reach of his pro- 
posed measures. Again, if it is the duty of the law-maker to 
concern himself with the effect of legislation upon crime, he 
must nevertheless not overlook other interests of equal im- 
portance. He is not to sacrifice all else in the single end of 
removing what are temptations solely for persons of criminal 
tendencies. 

Following this general sketch of Ferri’s plan, it becomes 
necessary for us to distinguish such of his proposals as have 
a bearing upon education or social economy, and tend merely 
to the reform of existing laws, from such as aim directly at 
stamping out the cause of certain specific crimes. The former 
are a natural and constant effect of civilization, and from them 
can be hoped the gradual moralization of the people and, re- 
sultingly, the diminution of vice and crime. As for the 
second class of proposals, their sphere of action is but limited, 
since they are concerned with a few criminal specialties. 
In this regard, Ferri proposes to remove certain existing re- 
strictions such as taxes, monopolies, etc., and set up new re- 
strictions applying to holiday celebrations, the retailing of 
liquor, and the like. 

Now, if we abolish a restriction, it is evident that crimes 
directly due to its violation will cease. If we repeal all tariff 
legislation, there will be no such thing as smuggling. But, 
on the other hand, every new restriction will have its trans- 
gressors, and consequently result in the creation of offenses 
which before had no existence. And besides, none of these 


§ 1] INFLUENCE OF THE LAWS 185 


restrictions which are thus to be removed or adopted at the 
legislative will, in anywise concern the kind of crime which is 
the sole object of our present study, namely, that natural 
crime whose definition before appears. Smuggling, contra- 
ventions of special regulations, the purely political crime, the 
fact which does not wound the altruistic sentiments — none 
of these has anything to do with true criminality. Neither the 
adoption of new prohibitions nor the removal of the old can 
have any influence, direct or indirect, upon natural crime. 
The tavern, for example, does not produce homicide. It is, to 
be sure, a meeting place which attracts drinkers and gamblers. 
Among these, quarrels may arise, leading to the exchange of 
blows and sometimes culminating in the taking of life. But 
almost the same thing may be said of what for the higher 
classes is the equivalent of the tavern — the café or club. 
Even here, dislikes and hatreds may be engendered, resulting 
in insults and duels. Certain other usages and institutions, 
which are indispensable conditions of specialized offenses, 
are permanent social facts. If money did not exist, there 
would be no counterfeiters. If there were no marriage, the 
crime of bigamy would be non-existent. The same is true of 
all the other economic, political, religious, and family institu- 
tions essential to social life. 

It is therefore wholly useless to carry the question into this 
field. Moreover, the proposal is only to remove the most 
frequent causes of crime arising from certain ordinarily dan- 
gerous customs or usages which it is possible to limit or forbid 
in the general interest. In respect of certain liberal institu- 
tions, Ferri agrees with other writers that the “first thing is 
to see whether it is not a lesser evil to endure these institutions 
with their attendant ills, than to lose all the good which they 
undeniably bring. Especially must it be remembered that 
as law is inseparable from society, so crime, the violation of 
law, is always inseparable from the law itself. The abuse of 
human liberty will always exist: all that can be done is to 
reduce it to the narrowest possible limits.” 


186 CRIMINOLOGY [$1 


The same argument might bear application to certain 
proposals of the author himself, relating to the economic, 
political, and domestic orders. Free trade, he believes, 
would prevent many criminal acts, as would the abolition of 
monopolies. True enough, but who, from this consideration 
alone, would counsel the State to remove its import duties 
or relinquish any useful monopoly? So too, the fact that 
enlisted men are not allowed to marry is no doubt a frequent 
cause of immorality: it is responsible for a great deal of un- 
lawful cohabitation and the unhappy plight of many deserted 
women. Yet what government would forego the undoubted 
advantage of possessing an army which in its lower ranks is 
composed of men unhampered by matrimonial ties? 

On the other hand, suppose that we had numerous such 
changes in law or custom. Could we be sure that the decrease 
in one specialized form of criminality would not be com- 
pensated by the increase of another? If you take away from 
the lower classes their holiday celebrations, will you not add 
to their isolation and thereby lessen their sociability? If 
their daily labors are not interrupted by an hour of careless 
pleasure, will their fatigues be as easily borne? Will they not 
become sullen, morose, perhaps even grow to hate their fellow- 
men, — a change in their character attended with new danger 
of crime? By authorizing divorce, can you legislate jealousy 
out of existence? Consider the rancor of the husband, 
turned away from his own door and shut out from the society 
of his own family. Finally, in view of the unconquerable 
resistance of inveterate usage, what assurance is there that 
such measures will accomplish what is expected of them? 

As a means of diminishing alcoholism, Lombroso and others 
have advocated the imposition of very heavy duties upon the 
manufacture and sale of spirituous liquors. But this question 
cannot be decided in the affirmative without affecting economic 
interests which the State is bound to protect. Moreover, 
such measures are not always successful. Tlustration of this 
is afforded by the French laws of 1871 and 1872. Although 


§ 1] INFLUENCE OF THE LAWS 187 


by these enactments the duties on alcohol were suddenly 
raised to twice the former rate, this did not prevent a continued 
increase in its consumption. 

As Despine has already suggested, a means of directly 
preventing the evil produced by alcoholism, would be absolute 
prohibition of the sale of intoxicants. But it is vain to hope 
for any such reform in Europe.'!' It would be more feasible 
to employ a less radical measure, such as the fixing of a maxi- 
mum number of liquor licenses for each commune, to be 
attained by gradual restriction. Holland many years ago 
adopted this course. Although, within the space of a few 
years, the duties had been raised from 22 florins to 57 florins 
per hectolitre, the continual increase in the consumption 
of whisky became a matter of serious national concern. 
From 224,885 hectolitres in 1854, it had attained the figure 
of 328,000 hectolitres in 1881, an increase from 7.08 to 9.81 
litres percapita. In the campaign against this vice, “which not 
only was responsible for the moral and physical ruin of hun- 
dreds of citizens, but was also an evil which threatened family 
life and the peace and safety of the public,” the Government 
took the initiative. For, “in view of the fact that to the State 
_ was entrusted the task of providing for education by means of 

its schools, of furthering prosperity by encouraging com- 
merce, and of seeing to the public safety by the aid of its pris- 
ons, it would be strange indeed were it to be denied the right 
to make war upon one of the deadliest enemies of the same 
education, prosperity, and public safety.” In accordance 
with these views, a bill was introduced, passed by the Cham- 
bers, and published on June 28, 1882. By its provisions a max- 
‘imum number of licenses was fixed for each commune. These 
were to be granted upon payment of a duty or license fee. 


1 I say in Europe, because many of the States of the American Union, 
beginning with the State of Maine, have taken the resolute step of prohibiting 
absolutely the sale of any kind of alcoholic liquor. See Despine, “De la folie,” 
etc., p. 104. 

2 Report of the Minister(Moddermann). See Drucker,“ Das niederlandische 
Gesetz von 28 Juin, 1882” (Zeitschrift fiir die gesammte Strafrechts- 
wissenschaft, Vol. III, p. 573). 


' 


188 CRIMINOLOGY ($1 


The terms of the law were such that within twenty years from 
its passage the plan would be in full operation. Penalties were 
added for drunkenness and for encouraging drunkenness. 
Six months of this law sufficed to show excellent results. 
From 45,000 in 1879, the number of taverns fell to 32,983, 
and the receipt of duties on whisky became less by 100,000 
florins, while the consumption of beer and sugar exhibited an 
increase. Holland has shown us what a firm and prudent 
government can do to lessen the ravages of a vice whose 
prevalence was such that a member of the States-general 
could contend for the necessity “of allowing the workman 
to take in peace his two glasses of ‘schnapps’ per day.” ! 

Why not follow this example where the vice is more recent 
and therefore more easily extirpated? In Italy there has been 
a rapid increase in the number of places for the retailing of 
liquor. Milan, for example, had 848 more in 1877 than in 
1872.2, Neither in the Roman provinces nor in those of the 
South, does the consumption of strong drink attain large 
proportions, but here the drinking of wine, while less harm- 
ful from the standpoint of public health, nevertheless, be- 
cause of the excitable nature of the people, produces even 
worse effects from the standpoint of public safety. It is re- 
sponsible, beyond question, for many crimes of bloodshed. 
Direct proof of this is furnished by the fact that inthe province 
of Naples the removal in 1876 of all restrictions upon the re- 
tailing of liquor and the consequent increase in the number 
of wineshops were attended by an increase in the number of 
strikings and woundings (“coups et blessures volontaires”’). 
From 1,577 in 1877, their number rose to 2,191 in 1878, to 
3,349 in 1879, and to 3,980 in 1888. Since the last-mentioned 
year the number has continued to be very high. It would 
therefore be a wise measure to impose a heavy license tax and 
limit the number of licenses to a maximum for each locality, 

1 Drucker, article cited (at p. 580). 

2 During the same period, 1872 to 1877, the number of bottles of spirits 


and liqueurs imported into Italy increased from 17,876 to 27,883. Archivio 
di psichiatria, scienze penali, etc., Vol. IV. No. 2, p. 273 (Turin, 1883). 


§ 1] INFLUENCE OF THE LAWS 189 


making interim provision for the gradual reduction of the ex- 
isting number of retailers of liquor in a manner similar to that 
of the Dutch law. 

But returning to the theory under discussion, it is to be 
noted that many of the other measures advocated by Ferri 
lie outside the State’s sphere of action. Such are his recom- 
mendations that workmen’s societies should expel members 
addicted to drunkenness, that healthful amusements be pro- 
vided for the people at a low price, that the custom of paying 
wages but once a week and on Saturday night be discontinued, 
and that cheap and sanitary dwellings be constructed for the 
working classes, as well as his proposals for temperance socie- 
ties, codperative mutual benefit associations, workmen’s sav- 
ings banks, charitable committees, the admission of women 
to the practice of medicine, and the popularization of the 
doctrines of Malthus. With respect to all these measures, it 
is clear that if it is possible for the government to exercise 
any influence at all, it can be only of a very limited kind. 
Matters of this character are not the proper subject of legis- 
lative reforms. They all depend upon the natural progress of 
civilization, upon the development of thrift and economy — in 
fine, upon individual initiative. To say that by these means 
criminality would decrease is exactly the same thing as de- 
claring that as a society acquires an increased appreciation 
of the value of labor, thrift, and good order, it produces fewer 
crimes — something which no one will deny. Even if the 
State were to set its hand to some of these reforms (that of 
Malthusian checks apart, since action of the State would be 
here out of the question), it is a matter of grave doubt 
whether its efforts would be crowned with success. Such 
interference, however, would be opposed by sound political 
considerations. 

What, then, is here the true function of legislation and ad- 
ministration? In the prevention of crime, legislative measures 
of general application cannot go beyond the maintenance of a 
good police system, the wise administration of justice, and the 


190 CRIMINOLOGY [$2 


_ indirect development of a public moral education which will 
tend to counteract certain vicious habitudes ordinarily the 
cause of crime. Upon these habitudes it cannot act directly 
except in some special cases, as in the regulation of liquor- 
selling, gambling, and the carrying of arms. Aside from such 
instances, the State should be careful how it interferes with 
the individual rights of the citizen. For notwithstanding the 
laudable object which moves it to act, its interference is bound 
to develop abuses, to degenerate into unendurable violation of 
personal liberty, and to be productive of new disobediences 
on the part of the citizen. 

Schools directed by persons of intelligence and morality, 
lecture halls for the education of the public, agricultural 
establishments for dependent children, prohibition of obscene 
publications and immoral plays, exclusion of young persons 
from notorious criminal trials, restriction of the retailing of 
liquor, suppression of vagabondage, police surveillance of 
persons suspected of crime, good civil laws, and a speedy and 
inexpensive procedure — these are the only indirect means of 
counteracting criminality that fall within the scope of govern- 
mental action. 


§ 2. Penal Laws 


Having thus considered the practical value of indirect 
means of prevention, it is time to turn our attention to the 
question of direct means, or, in other words, to the problem 
of punishment. According to some of the writers on sociology, 
punishments are almost destitute of preventive effect, while 
for others they represent instrumentalities of the highest 
efficacy. Either side of the question may be supported by 
examples from history: on the one hand, of cruel and bar- 
barous punishments which have signally failed to prevent the 
frequent recurrence of certain crimes; on the other, of severe 
forms of repression which have almost entirely stamped out 
the offenses at which they were aimed. 


§ 2] INFLUENCE OF THE LAWS 191 


Criteria of Utility of Punishment. —In my opinion, the 
question is quite capable of solution if we remember that there ~ 
are different classes of criminals. With this fact before us, 
it becomes plain that the extreme criminals — men wholly 
destitute of moral sense and capable alike of murder or 
theft — are not greatly impressed by the menace of imprison- 
ment, whether for years or for life. They are too improvident, 
too brutalized, of too little sensibility, to appreciate the dis- 
grace of the prison, or to feel the suffering, moral rather than 
physical, which loss of liberty entails. Yet they set store by 
their lives. For this reason, the death penalty alone has for 
them any power of intimidation. But its infliction must be 
swift and certain. When too seldom applied, it begins to 
lose its effect upon them.! 

With respect to impulsive criminals, whether such from 
temperament, from neurosis, or as the effect of alcoholic excita- 
tion, it has been too hastily concluded that they are unaffected 
by the menace of punishments. Even the insane, as physi- 
cians assure us, may feel the effect of threats. Although in 
the impulsive criminals reflection is absent, yet there may be 
produced a counter-movement quite as independent of re- 
flection as the criminal impulse, and due to the vague idea of 
an evil which impends, if they give way to their passions. 
But it is by no means the so-called punishments of modern 
legislation which can thus appeal to their imaginations. To 
produce the requisite impression, the threatened harm must be 
serious and immediate. If every one were convinced that to 
strike another with the hand meant the instant loss of that 
hand, many supposedly irresistible impulses would cease to be 
irresistible: perhaps the very word which describes this act 
would disappear from our active vocabulary. 

It is no answer to say that the barbarous punishments of 


1 In the Italian Chamber of Deputies, at its sitting of 10 March, 1865, 
Conforti related the history of a case in which certain persons who had plotted 
amurder and robbery were frightened from their purpose by the fact of 
two capital executions occurring on the day fixed for the crime. 


192 CRIMINOLOGY [$2 


the Middle Ages were not more efficacious than the punish- 
ments of the present day. For one thing, we are without the 
statistics which would enable us to institute a comparison. 
Moreover, there was then a greater uncertainty of punishment. 
Numerous ways of escaping it existed, such as immunities, 
the right of asylum, and the protection of the great nobles. 
Then, too, the irregular working of the police system and the 
defective administration of justice in that day must be taken 
into account. 

’ The case of professional malefactors requires to be envisaged 
from a different point of view. By offenders of this descrip- 
tion, the chances of evading punishment are calculated with 
a considerable degree of accuracy. They boldly face the 
danger, because in this trade, as in any other, some risk must 
be run, — and there are much more hazardous trades which 
do not lack craftsmen. Yet here, as elsewhere, the smaller 
the risk and the more certain the reward, the greater the supply 
of recruits. But of this more in the sequel. In dealing with 
such offenders, therefore, legislation cannot accomplish much 
in the way of prevention. What it must principally aim at in 
this case is elimination. No laws, whatever their plan of oper- 
ation, can be expected to cause the complete discontinuance 
of the work or the total discouragement of the workers. 
To diminish the number of offenders by suppressing those 
who are captured and convicted — such must be here the 
object of any really effective penal measures. 

The value of punishment in relation to endemic criminal- 
ity — due principally to social prejudices, to class customs, 
old and new, and to popular tradition — must next be 
considered. Here, particularly, from the standpoint of pre- 
vention excellent results may be accomplished by severity 
of punishment. A recent illustration is afforded by the rapid 
decrease of murder in Corsica. In 1854 two laws were passed 
specially applicable to the island, one forbidding the carrying 
of arms, the other directed against persons harboring or con- 
cealing bandits. Fifteen years of these exceptional measures 


§ 2] INFLUENCE OF THE LAWS is 


proved fully their wisdom. The disarmament of the whole 
population had struck, as it was supposed, a decisive blow at 
traditions which had been a constant source of bloodshed. 
But unfortunately this legislation was repealed in 1868, with 
the result that crime took on a new lease of life. From time 
to time the magistrates in their public addresses have em- 
phasized the fact “that the present situation suffers by com- 
parison with that which existed during the fifteen years when 
Corsica underwent the salutary discipline of being excluded 
from the benefits of the general law.’! In the province of 
Naples, as the result of a special law which threatened 
offenders with thirteen years’ penal servitude at hard labor, 
the practice of disfiguring young women with razor slashes 
—the customary revenge of disappointed admirers — had 
almost ceased in 1844. It recommenced after the adoption of 
the Code of 1859, which provided for a much milder punish- 
ment, and its presence became especially marked after the 
establishment of the Courts of Assizes. So numerous did 
offenses of this description become that the Government was 
obliged to take them out of the jurisdiction of the Courts of 
Assizes and make them a matterfor the Correctional Tribunals, 
where trial by jury does not prevail, — for the double purpose 
of saving time on their trial and ensuring more certainty of 
conviction. But other difficulties have arisen. In the first 
place, according to the Italian procedure nearly all persons 
accused of misdemeanors (“délits”) are entitled to provi- 
sional liberty,” and consequently to remain at large not only 
during the judicial investigation (“instruction”), but until the 
termination of proceedings for review in the Court of Cassation, 
— and the convicted prisoner seldom fails to invoke the action 
of the last-mentioned court.2 This feature manifestly robs a 


1 Bournet, “‘La criminalité en Corse” (Lyons, 1887). 

2 [See post, p. 345, note 2. — TRanst.] 

3 [CrmmnaL Courts or FRANCE AND Itaty. — The French and Italian 
criminal courts are similar in organization, but differ considerably in respect 
of the jurisdictional subject-matter of the several branches. 

(a) France. — The general scheme of the French criminal courts consists 


194 CRIMINOLOGY [$2 


criminal prosecution of much of its terror. Again, the sen- 
tences imposed are for terms of imprisonment much too short, 


in a tripartite division answering to the tripartite division of offenses and 
punishments (see ante, p. 59, note 1). “There are in France twenty-six 
Courts of Appeal. There are an indeterminate number of Courts of First 
Instance. There is in every commune one “juge de paix”’ at least. Others 
are divided between two or more. These are the French courts from which 
are taken the Criminal Courts as follows: The Cour d’Assises is taken from 
each Cour d’Appel. It consists of three judges, one of whom is president. . . . 
The Cours d’Assises try by a jury, and the proper subject of their jurisdiction 
are “‘crimes”’ as distinguished from “délits”’; but they also have a special juris- 
diction in some particular cases, and if a case tried before them turns out to be 
a “‘délit,” or even a police offense, they may deal with it.— The Tribunal 
Correctionnel is the Tribunal of First Instance sitting as a criminal court. It 
consists of three judges taken from the Court of First Instance. They try 
without a jury and have jurisdiction over “délits,” that is to say, over offenses 
which can be punished with more than five days’ imprisonment and more than 
15 francs’ fine, but not with death, “travaux forcés,” or “réclusion.” The high- 
est punishment which they inflict is five years’ imprisonment, or, in cases of a 
second conviction, ten years. They may also in many cases try persons 
under sixteen for “‘crimes”’ punishable with “travaux forcés” for not exceed- 
ing twenty years or “‘réclusion.” Lastly the juges de paix are judges in regard 
to police offenses punishable with a fine not exceeding 15 francs, or imprison- 
ment not exceeding five days. — If the “juge de paix” sentences any one to 
imprisonment or to a fine of more than 5 francs, an appeal lies to the Tribunal 
of Correctional Police. . . . An appeal lies from the Correctional Court to the 
Court of Appeal in the case of all final judgments, and of such interlocutory 
judgments as have a direct bearing upon the final judgment. . . . There is 
no appeal, properly so called, from the decisions of a Cour d’Assises. — 
All the courts, the Cours d’Assises as well as the rest, are subject to an appeal, 
as we should say, on matter of law only, to the Court of Cassation. This 
court sits at Paris, and is composed of three chambers, in each of which 
there are sixteen judges. . . . To use the language of English law, the Court 
of Cassation must either confirm the judgment appealed against or order a 
new trial.” (Stephen, History of the Criminal Law of England, I, pp. 517-520). 

For all matters triable by the “Cour d’assise,” after the prisoner has been 
held for trial by the judge of instruction, there must be a “mise en accusation” 
(analogous to our indictment). ‘This is the business of the Chambre d’ Accu- 
sation, a body which answers roughly to our grand jury, though they differ 
widely, both in their constitution and in their functions.’ It is composed 
of judges from the “‘Cour d’Appel” and in fact forms a division of that court. 
(Ibid., pp. 535, 536.) 

(b) Italy. — In Italy the lowest criminal court is that of the pretor (“pre- 
tore’). His jurisdiction is much more extensive, however, than that of the 
French “juge de paix,” since it includes, in general, offenses punishable with 
less than three months’ imprisonment. Above the pretor are the Penal 
Tribunals (“Tribunali penali’’), the Courts of Appeal (“Corti d’ appello”’), 
the Courts of Assizes (“Corti d’ assise”’) and the Court of Cassation (“Corte 
di cassazione’’). The Penal Tribunals (constituting the criminal side of the 
“Tribunali civili e penali”) have, in first instance, a jurisdiction embracing 


§ 2] INFLUENCE OF THE LAWS 195 


and even these short sentences the pardoning power is too 
ready to commute. The result wears the appearance of a 
semi-impunity, and in the meantime the practice thus in- 
effectively sought to be repressed has become so much the 
fashion that there are villages in the neighborhood of the city 
of Naples where a young woman of any personal attractions 
at all has little chance to escape this manner of disfigurement, 
unless she is willing to marry the first razor-wielder who asks 
her. 

Similar considerations apply to the reckless use of the 
revolver. The exchange of shots in the streets and taverns 
of Naples became a matter of such frequent occurrence that 
here, too, it was found necessary to take the offense out of the 
sphere of the jury. By treating it as a mere attempt to wound 
(“tentativo di ferimento’’), or as the discharging of fire- 
arms in a quarrel (“sparo d’ arme da fuoco in rissa”’) and not 
as an attempt to commit homicide (“omicidio mancato”), 
the Government has conducted its prosecution before the 


most offenses punishable with imprisonment of more than three months, 
where the minimum which may be inflicted is less than five years and the 
maximum not more than ten years. In second instance, they hear ap- 
peals, which in certain cases lie from the pretors. Each Court of Appeal has 
a division — the Section of Accusation (“Sezione d’ Accusa’’) — answering 
to the French “Chambre d’ Accusation,” and performing the same function, 
namely, that of determining whether persons held for offenses coming within 
the jurisdiction of the Court of Assizes should be put on trial. Another 
division of the Court of Appeal hears appeals from the Penal Tribunals. 
The Italian Courts of Assizes, like the French, are composed of judges from the 
Court of Appeal, and are the only courts in which trial by jury obtains. Their 
chief item of jurisdiction consists of offenses involving a punishment of five , 
years or more in the minimum or (whatever the minimum) more than ten 
years in the maximum. —Since 1889 there has been but one Court of Cassa- 
tion for criminal matters. This sits at Rome and has jurisdiction through- 
out thekingdom. As in France, it reviews on questions of law only. (Code 
of Criminal Procedure, §§ 9-11; “‘Digesto Italiano,” VI[— 3, pp. 467, 475; 
Mortara, “Istituzioni di Ordinamento giudiziario,” p. 217 et seq.). 

In distribution, the jurisdiction of the Italian courts was materially affected 
as a consequence of the Code of 1889 and the substitution of the bipartite for 
the tripartite classification of offenses. Prior thereto, it corresponded very 
nearly with that of the French courts (upon which indeed the judicial organ- 
ization was modeled), inasmuch as the Penal Tribunals (then known as Cor- 
rectional Tribunals) heard most cases of “‘delitti’’ and “crimini” in general 
were dealt with by the Courts of Assizes. — TRANsL.] 


196 CRIMINOLOGY [$2 


Correctional Tribunals. But the very fact of thus lessening 
the gravity of the offense has led to its further encouragement, 
with the result that in most instances it is innocent passers-by 
who are its victims. And in the majority of cases the offenders 
are let off with a sentence of a few months in prison. In 
France the same deplorable consequences have followed ac- 
quittals of “vitrioleuses.” In Scotland, on the other hand, 
the practice of vitriol-throwing was completely stopped when 
the British Parliament enacted, for that country, a statute 
making the offense a capital one.! 

In these and similar cases, the existence of the evil must 
be principally attributed to the lightness of the punishment. 
For here we are not dealing with habitual offenders who take 
the chances of punishment as a risk incident to their trade. 
Offenders of the present description are men who, although 
lacking in the altruistic sentiments, become criminals only in 
a given situation —a situation governed by a barbarous 
usage which they do not find repugnant and which conse- 
quently they hasten to follow. But although urged to this 
course by their instincts, they could quite as well relinquish 
their purpose, if its accomplishment presented too many dis- 
advantages. And a very serious disadvantage indeed would 
be a punishment certain and severe — a punishment which 
would be a life-long burden, which would overturn all their 
plans for the future, and end with reducing them to an inferior 
condition of life. 

It is by no means a few months of correctional imprisonment 
which is capable of effecting this result, especially if there be 
taken into consideration the chances of a second judgment 
on appeal, followed by a favorable decree of the Court of 
Cassation, the criminal in the meantime being provisionally 
released and left free to leave the country if he chooses. 

It is easily understood that in such cases the severity of 


1 Aubry, “La contagion du meurtre” (Paris, F. Alean, 1888). [The statute 
referred to is 6 Geo. IV, c. 126, § 2 (reénacted in 10 Geo. IV, c. 38), relating 
to the throwing of “‘sulphuric acid or other corrosive substance, calculated 
by external application to burn or injure the human frame.” — TRANSL] 


§ 2] INFLUENCE OF THE LAWS 197 


penal laws is not without its influence. Another thing which is 
important in this connection: What makes criminality en- 
demic or imitative in a city, a district, or a nation is the fact 
that public blame does not bear sufficiently hard upon the 
offense involved. It is therefore for the law to show that facts 
of this description are not to be tolerated: upon it devolves 
the task of correcting the improper tendencies of public 
opinion. Far from allowing itself to be caught in any backward 
current, it must aid the moral evolution of the people: it 
must stamp endemic crimes not as trivial faults, but as rep- 
rehensible acts, abstention from which is vigorously to be 
insisted upon. And this end can only be attained by severity 
of punishment. 

Plainly, then, it is not to be hastily concluded that severity 
of punishment is without any general or indirect effect. 
The question is solely one of distinguishing one class of 
offenders upon which its power can be generally exercised, 
from another which is able to feel this power in but a slight 
degree. The absence of morality, or even the presence of the 
criminal instincts, being much more prevalent than is com- 
monly supposed, it is necessary to adopt such measures as 
will make crime disadvantageous and honest conduct the 
better policy. For that reason, it is possible for the mitiga- 
tion of punishment to be a true source of crime. 

Effect of Mitigation of Punishment in General. — When it 
is considered that in the first half of the 1800s criminality, 
in its more serious forms, had been reduced to no very alarm- 
ing proportions, and that in the second half of the same cen- 
tury it underwent an immense increase in the very countries 
where punishments had been made less severe and of shorter 
duration, one cannot help reflecting that the first of these 
periods had been preceded by centuries in which capital pun- 
ishment had been dispensed on a vast scale. And it is pre- 
cisely the second of these periods which has witnessed the 
transformation of the penal system and that progressive miti- 
gation of punishment which continues today, and is acclaimed 


198 CRIMINOLOGY [$2 


by the juridical school as a true mark of civil progress. Here 
are the facts: 

In France, from 1828 to 1884, the annual number of murders 
(“assassinats”) increased from 197 to 234; of infanticides, 
from 102 to 194; of indecent assaults upon children, from 
136 to 791; of misdemeanors (“délits”) specified in ‘the 
Penal Code and not the subject of special laws, from about 
41,000 to about 163,000; of strikings and woundings (“coups 
et blessures’), from 8,000 to 18,000; of thefts (“vols”), 
from 9,000 to 33,000; of cases of obtaining money by 
false pretenses (“escroqueries”’), from 1,171 to 6,371; of 
offenses against decency, from 497 to 3,397; and of cases of 
vagabondage, from 3,000 to approximately 16,000. During 
this time the population, which was 31,000,000 in 1826, in- 
creased only by 7,000,000, since it amounted to but 38,000,000 
in 1884. It is thus apparent that the increase in criminal- 
ity has far surpassed that of population. 

Now, it is exactly in this period of more than half a century 
that a multitude of punishments had undergone mitigation, 
that juries had become more and more lenient, that the new 
teachings of the correctionalist school had impressed upon 
the judges the necessity of taking into consideration all the 
circumstances which might tend to diminish the moral re- 
sponsibility of the accused and then to strike, but to strike 
in a mild and almost paternal fashion. Thus, by degrees, 
punishments have come to wear the appearance of the dis- 
ciplinary measures applied to unruly school boys. Indeed, 
the former are much the less severe of the two, since under the 
prison regulations no inmate can be deprived of light or com- 
pelled to undergo the temporary deprivation of food. 

In the same country there has become apparent, since 
1886, a gradual diminution of the more serious forms of crime. 
The average number of murders per annum in the period from 
1896 to 1900 fell to 183, that of cases of incendiarism, 196 
in 1881, to 164, that of aggravated theft (“vols qualifiés”) — 
835 in 1881, to 636, and so on. In 1886 the number of crim- 


§ 2] INFLUENCE OF THE LAWS 199 


inal cases tried before juries was 3,252. This number dropped 
to 2,950 in 1889 and to 2,283 in 1900. As we have suggested 
above, it is clear that the greater severity of punishment 
has not been without its effect in this movement of decrease. 

Nor can it be denied that the death penalty has a reflex 
influence upon all the lesser criminality. The mere fact that 
this punishment exists and is inflicted from time to time is a 
check upon all men of criminal propensities, inasmuch as 
they are not acquainted with the exact limits of its possible 
application. All that they know is that the State has the power 
to take the lives of certain criminals. They cannot be sure 
that they do not fall in this class. Thus they become more 
seriously impressed with the power of the law.! It may 
even be said that the death penalty has most terror for those 
whom it does not directly menace, that is to say, the lesser 
criminals, the least improvident, the least brutalized, the least 
incapable of subduing their passions. 

A member of the Italian Chamber of Deputies, by pro- 
fession a lawyer, in a speech before the Chamber declared 
that on many occasions persons charged with inflicting wounds 
had admitted to him that they would have killed the object 

of their attack, had it not been for the fear of the gallows.” 
_ I may cite a corroborative fact of which I myself was almost 
an eye-witness. In the year 1884, in Santa Maria di Capua, 
a small town in the South of Italy, three death sentences had 
been pronounced by the Court of Assizes, at brief intervals. 
Some days after the last conviction an inhabitant of the town, 
seeing an enemy of his house pass in front of his windows, 
became seized with an access of rage, grasped a rifle, and took 
aim at the man. But suddenly he was seen to lay down his 
weapon without discharging it, and was heard to cry: “You 
may thank the Court of Santa Maria for reviving the death 
penalty.”’ Now, if this man had fired and had killed his foe, 
he would have been punishable, according to the Italian law, 


1 See Turiello, “Governo e governati,”’ c. mt (Bologna, Zanichelli, 1884). 
2 Chiaves, at session of 8 March, 1865. 


200 CRIMINOLOGY [$2 


only by penal servitude, for his crime would have been cul- 
pable homicide (“‘meurtre”’) and not murder (“‘assassinat’’). 
In his excitement, however, he could not stop to make this 
distinction; what vividly presented itself to his mind was the 
recollection of the recent death sentences. And by this very 
circumstance a human life was saved. Is it likely that he 
would have had the same fear of the law, if it had been the 
case,” and he had known it to be the case, that even for the 
most extreme crimes the State could not punish except by the 
prison or penitentiary? 

Moreover, Italy as well as France has had experience in the 
mitigation of punishments. In the old kingdom of Naples, 
where the criminal laws were much more drastic than those of 
modern Italy, where there was no trial by jury and no recogni- 
tion of extenuating circumstances except such as were dis- 
tinctly specified by law, and where the death penalty was 
inflicted with considerable frequency, the proportion of crimi- 
nality was much less than it is in the same territory today: 
since the changes introduced by a so-called progress, the 
increase of crime has been immense.* 

The admission of extenuating circumstances—true of 80% 
of the cases in which the accused have been found guilty 
of taking human life — has resulted in homicidal criminals 
and even murderers being let off with temporary and often 
correctional punishments. — Is it possible that such a relaxa- 
tion of criminal justice has nothing to do with the rapid 
increase of crimes of bloodshed in Southern Italy? For my 
part, I cannot believe so, especially in view of the fact that 
this is by no means an isolated phenomenon. Throughout the 
whole of Italy there has been a general increase of criminality 

1 [ Assassinat” = premeditated homicide; “meurtre” = intentional but 
unpremeditated homicide. For the French law, see Stephen, “History 
of the Criminal Law of England,” III, pp. 93, 94. — TRanst.] 

Rg [The death penalty was not abolished in Italy until January 1, 1890, when 
the present Penal Code went into force. See post, p. 201. — TRANSL.] 

* Many of the more serious forms of crimes have more than doubled in 


number, without any proportionate increase of the population. This last was 
about 6 millions in 1833 and had attained little more than 7 millions by 1880. 


§ 2] INFLUENCE OF THE LAWS 201 


since 1863, that is to say, since the mitigation of punishment 
began to make itself evident. 

To this fact the following figures of judgments of conviction 
in the Courts of Assizes bear witness: For parricide, 12 in 
1863, 22 in 1869, 34 in 1870, and 39 in 1880; for killing of the 
wife by the husband and vice versa, 15 in 1869, 38 in 1870, 
and 92 in 1880; for infanticide, 44 in 1863, 52 in 1869, 51 in 
1870, and 82 in 1880; and for murder, 285 in 1863, 419 in 1869, 
450 in 1870, and 705 in 1880. From 1860 to 1870, the number 
of crimes punishable by death showed an increase of 22%; 
the number of those punishable by penal servitude for life 
an increase of 64%. 

From 1881 on, a tendency to diminution began to be notice- 
able. But it was not long before the legislature took the 
unwise step of abolishing capital punishment. Effective in 
1890, this measure was attended by an immediate arrest of 
the movement of decrease. The number of homicides an- 
nually brought to the attention of the prosecuting authorities 
is still in the neighborhood of 4,000, and up to 1899 there was 
a continuing increase in the more serious forms of criminality. 

In the period from 1891 to 1895, the average annual total 
of convictions for felonies (“crimes”) and misdemeanors . 
(“délits”) was 254,591. During the subsequent three years, 
this increased to the alarming figure of 303,258. In 1885 
we had not quite 800 convictions for every 100,000 in- 
habitants: today we have 966. 

Nor is the phenomenon confined to France and Italy. It 
is observable in all countries where punishments have been 
the subject of mitigation. The increase has been very appre- 
ciable and far in excess, proportionally, to the increase in 
population.! In the German Empire, taken as a whole, during 
the period from 1882 to 1899, the common felonies (“crimes” 
and misdemeanors (“délits”) underwent an increase of 427%. 


1 Chile, of which this is true, shows an enormous number of homicides. 
See Newmann, “Notas sueltas sobre la pena de muerte” (Santiago de Chile, 
1896). 


202 CRIMINOLOGY [§2 


Similarly in the Austrian Empire, the annual total of felonies 

“‘crimes’’), which was 18,154 in 1861-65 and 27,304 in 1871-— 
75, rose to 31,000 in 1896-98. That of misdemeanors (“délits’’) 
rose from 202,903 in 1871-75 to 306,007 in 1896-99. During 
the same period, the number of convictions for inflicting 
serious wounds ascended from 3,907 to 4,870, for simple 
theft (“vol simple”) from 83,172 to 111,178, for criminal 
bankruptcy and offenses involving fraud and breach of trust, 
from 12,018 to 20,955. 

It may be said that almost everywhere, throughout Con- 
tinental Europe, there has been a general increase of crimi- 
nality. In the most civilized of the European countries, it is 
true, certain barbarous forms of crime, such as arson and high- 
way robbery, have shown a sensible diminution, but this has 
been more than offset by the increase of woundings (“bles- 
sures”), larceny, forgery, and crimes of fraud. In England 
alone, there has been apparent for many years an almost gen- 
eral movement of decrease of criminality, especially in its 
more serious forms. Homicide has there become very rare. 
In 1878 the average number of prison inmates was 20,833; 
in 1893 it had fallen to 12,178. Convictions for larceny and 
forgery diminish every year, as do those for crimes against 
the person. And England, be it noted, is the one country 
where the modern penal theories have exercised the least 
influence, where the murderer almost invariably meets the 
death penalty, and where other punishments are exceptionally 
severe. In France the similar movement of decrease, which 
became evident after 1896 and was still in progress in the year 
1901, attests the efficacy of the more energetic repressive 
measures introduced in that country of recent years. 

No doubt, it would be wrong to attribute the almost general 
increase of crime in Europe of the 1800s solely to the lighter 
impression produced by modern punishments. It is unques- 
tionably the effect of a number of social and legislative causes. 
But punishments have manifestly become less efficacious. 
Not only is it true that their preventive power has diminished, 


§ 2] INFLUENCE OF THE LAWS 203 


but the notion that the typical punishment should be a tem- 
porary one, that, even in the case of criminal as distinguished 
from correctional convictions, a proper sentence is one which 
prescribes a short term of imprisonment, three or five years, 
for example — almost never more than twelve or fifteen — 
has resulted in all but nullifying their power of elimination. 
It is this sort of thing which enables the most hardened offender 
to become a recidivist, which makes possible the spectacle, 
not uncommon in Italy, of a man on trial for his second or 
third homicide. It is responsible, too, for the existence in 
all civilized countries of professional thieves and sharpers — 
offenders who will not cease their aggressions until compelled 
by some material obstacle and whom, consequently, it is 
farcical to release upon the expiration of their so-called 
punishments. 

Crime as a Trade.— Tarde concludes his review of lat- 
ter-day criminality with these significant words: “In taking 
on the aspect of a trade, crime becomes specialized... . 
The unfortunate part of it is that the profession of malefactor 
has become a profitable and prospering one, as is evidenced 
by the number of offenses and of persons arrested, even if 
we exclude recidivism and recidivists. . . . Upon what, in 
general, does it depend whether any species of trade is in a 
flourishing condition? First, that its revenues tend to in- 
crease; next, that its cost tends to decrease; finally, and 
most important of all, that there is a growing aptitude and a 
more frequent necessity for its exercise. Now, all these circum- 
stances combine to favor that particular industry which con- 
sists in despoiling others. Its profits have augmented and 
its risks diminished to such an extent that in any civilized 
country the profession of pickpocket, vagabond, forger, 
fraudulent bankrupt, etc.,— if not that of murderer, — is 
one of the least dangerous and most productive that a work- 
hating individual can adopt.” ! 


1G. Tarde, “La statistique criminelle du dernier demi-siécle” (Revue 
philosophique, January, 1883). 


204. CRIMINOLOGY [$2 


The case is not otherwise in Italy. The emoluments are 
most attractive. In a single year the pecuniary damage sus- 
tained by the public amounted to the sum of 14 million franes, 
— which, moreover, does not include pecuniary loss arising 
from criminal bankruptcies. This sum has therefore passed 
into the hands of thieves, sharpers, and murderers, and but a 
very small part of it has been recovered. As appears from 
the records of the Courts of Assizes, in 1,372 cases of crimes 
against property, in which judgment of conviction was 
rendered, the juries’ findings show damages aggregating the 
sum of 2,458,000 francs.!_ Assuming that the total number of 
criminals convicted is one-third more than of the crimes for 
which conviction is had, this would give us 1,826 criminals and 
consequently an average of 1,346 francs for each criminal. 
But if it be considered that about 60% of those guilty of theft 
either are never discovered, or else are acquitted for lack of 
evidence, we cannot go far wrong in multiplying by two the 
sum thus arrived at. The result, then, seems to be that from 
a material point of view the trade of criminal presents many 
advantages over most honest callings. It is attended by al- 
most no danger, a minimum of work, and financial returns 
which are all the more significant if we remember how diffi- 
cult it is for an honest workman at any one time to command 
a sum in excess of his weekly wage. 

Evasion of Punishment. — The chances of impunity are so 
numerous that the thought of prosecution and punishment, 
unless aided by some other motive, will seldom deter from 
crime. In Italy, as has already been intimated, the number of 
criminals who escape punishment because of the failure of 
the police to discover them, from lack of evidence to warrant 
their trial, or from being wrongfully acquitted, may be com- 
puted at about 60% of the total number of crimes.? The 

1 Statistica penale del Regno d’ Italia, 1889. 

2 Of the whole number of prosecutions, 30% terminate by an order of dis- 
missal for lack of evidence (“‘ordonnance de non-lieu”’’) entered by the judge 


of instruction. In the case of felonies (“crimes”), we must add a further 
proportion of 7.37%, in which such orders are entered by the Chambers of 


§ 2] INFLUENCE OF THE LAWS 205 


offender (and, especially, the thief, the sharper, and the forger, 
since it is this sort of criminal who most often avoids detec- 
tion) has therefore more than five chances in ten of going 
unpunished. And this is true even where the offense has been 
discovered and reported to the police — something which in 
cases of theft, swindling, and criminal breach of trust does not 
happen once out of ten times.’ The risk of the crime being 
discovered is remote, that of conviction equally remote, and 
that of serving out of the sentence still more remote. Follow- 
ing a judgment of conviction in the Court of Assizes, there is 
always the chance of reversal by the Court of Cassation, and 
of subsequent acquittal on a new trial. There is the further 
hope that executive clemency will reduce or modify the sen- 
tence. Again, for prisoners convicted by the Correctional 
Tribunals, there is an appeal, which stays the sentence and 
allows the provisional liberty, where that has been granted, 
to continue without interruption. And if the Court of Appeal 
decides against him, the defendant may always carry the case 
to the Court of Cassation, and thus keep out of prison for 
sometimes a year or two after the original judgment. Finally, 
when the worst comes to the worst, the offender, living in a 
large city where he is not widely known and being wholly 
free from police surveillance, can always find it possible to 
change his name by the aid of a forged birth certificate, which 
may be had for the price of the stamped paper,” and under the 
Accusation and of 33% in which a verdict of acquittal is found by the jury. 
Then, too, it has been computed that out of 5% of reversals by the Court of 
Cassation, there is a proportion of 39% in which the defendant is acquitted by 
the remanding judgment (“d’acquittements dans le jugement de renvoi’’). 
As for offenses cognizable by the Correctional Tribunals we have, first, 30% 
ended by orders of dismissal for insufficiency of evidence (“‘ordonnances de 
non-lieu’’), next, 30% in which the defendant is acquitted after trial before 
these courts, and again, 10% in which he is acquitted in the Court of Appeal; 
finally, of the cases in which judgment is reversed by the Court of Cassation, 
10% show an acquittal of the defendant on a new trial. 

1 Minzloff (“Caractéres des classes délinquantes,” — Messager juridique 
of Moscow, No. 10, 1881) estimates at 82% the total number of offenders 
who go unpunished. 

2 See on this subject, Bertillon, “Question des récidivistes” (Revue politique 
et littéraire, 28 April, 1883, — Paris). 


206 CRIMINOLOGY [§ 2 


protection of his assumed character of honest man he is safe 
from molestation as long as he likes. 

Futility of Prison Sentences. —It must therefore be admitted 
that to get into prison requires much goodwill.!. But it is 
also true that there are many individuals to whom this good- 
will does not lack. On the other hand, recidivists and persons 
who at the time of their arrest are under police surveillance, 
are not admitted to provisional liberty. This is why the cor- 
rectional prisons are always filled. 

But for delinquents of this description, of what avail is a 
sentence of three or six months’ imprisonment? 

Two Sicilian songs quoted by Lombroso, throw an interest- 
ing light on the intimidatory effect of prison sentences. One 
runs thus: 

“Who speaks ill of the Vicaria,? deserves to have his face 
cut to ribbons. What a fool is he who says that the prison is a 
place of punishment.” * 

And the other: 

“Only here will you find friends and brothers, money, 
good things to eat, and merry ease. Outside, enemies ever 
surround you; work you must or perish of starvation.” ¢ 

Suppose that, as a punishment for some adventure of gal- 
lantry, a man of the upper classes is forbidden to leave the 
precincts of his club for a period of some weeks. Here he 

1 Turiello cites the cases of the priest De Mattia who, having been admitted 
to provisional liberty when his offense was regarded as a matter for the cor- 
rectional courts, took to flight as soon as it was made a subject of criminal 
jurisdiction. As the author observes: “This circumstance proves that our 
existing laws are ineffectual to lay hold of the rich or influential offender, save 
perhaps in some clear and exceptionally flagrant cases” (“Governo e gover- 


nati,” c. m1, p. 338, note). 
2 A prison in Palermo. 
3 “Cu dici male di la Vicaria 
Ci farrissi la faccia feddi-feddi; 
Cu dici ca la carcere castia 
Comu v’ingannati, puvireddi!” 
4 “Qua sol trovi i fratelli e qua gli amici, 
Danari, ben mangiare e allegra pace; 
Fuori sei sempre in mezzo ai tuoi nemici; 
Se non puoi lavorar muori di fame!” 


§ 2] INFLUENCE OF THE LAWS 207 


foregathers with his most intimate friends. With them he can 
dine, play cards and billiards, and in general while away the 
time in most agreeable fashion. Nor do these friends think 
any the less of him for his fault. Far from it, they look upon 
him rather with feelings of envy. We can imagine what jest 
is made in that sympathetic circle of the foolish law which has 
thus thought to punish. And can any one believe that the 
fear of incurring again this same sort of punishment would 
in anywise deter the offender from resuming his ordinary 
habits of life and repeating the punishable act? 

Now, the case is precisely the same with the habitual in- 
mates of the prisons. They are furnished free food and lodging; 
they find themselves in the midst of companions and friends; 
they form new acquaintances which may be of use in the future. 
Nothing is heard resembling blame or criticism. On the con- 
trary, the entrant who has committed a masterpiece of crime 
at once becomes an object of admiration — an admiration 
which contents his vanity quite as much as the prison bill of 
fare satisfies his stomach. 

The same thing is true of the penitentiaries. After the 
fatigues and troubles of a long career of crime, the veteran 
offender makes no secret of his satisfaction in having finally 
achieved admission to so commodious a shelter. 

Much has been made by sentimental romancers of the 
grinding toil exacted of offenders condemned to penal servi- 
tude (“galériens”). But I venture to say that none of these 
writers ever saw the inside of a penitentiary. The actual fact 
is, in Italy at least, that the majority of such convicts are 
engaged in nothing more terrible than knitting! Compare 
with this, in point of severity, the lot of the workman who 
sweats in foundry or rolling mill, or that of the peasant toiling 
under the burning rays of a midsummer sun, and say, if you 
can, that the expression “hard labor” ! of the penal sentence 
is not the bitterest sort of irony.? 


1 (“Travaux forcés” in the original. — Transt.] 
2 “Tt is unquestionably true that, in its material aspects, the life in the 


208 CRIMINOLOGY [$2 


But grant that the criminal does suffer from deprivation of 
liberty, or at least from cellular confinement,! — grant, even, 
that the prison appears to him a real evil. What is the result? 
Tf an evil, it is one which he will endure with patience, with a 
sort of philosophic resignation. Regret for his own maladroit- 
ness in allowing himself to be caught will be accompanied by 
the resolve not to fall into the same error on a second venture. 
But will this transform him into an honest man? What 
craftsman will abandon his trade because of some incidental 
disadvantages, disadvantages with which he has long been 
familiar? Are there not plenty of honest vocations — even 
vocations for entrance to whose ranks men eagerly strive, — 
which are attended by the almost inevitable ruin of the 
workers’ health or by continual hazard of life and limb? 
The soldier, the policeman, the fireman, are all at times called 
upon to face death in the discharge of their public duties. 
How, then, can we expect that the fear of a brief term of im- 
prisonment will dissuade the professional criminal from 
continuing to exercise his lucrative calling? 

On the one hand, there is the risk of encountering the evil — 
a risk which we know is very remote; on the other, the evil 
itself, felt but little, and hence but little feared. Judge, then, 
if the menace of imprisonment can mean anything for the man 
who is under no other restraint, whose reputation for honesty 


penitentiary is for most of the convicts better than that which they were 
accustomed to before their arrest’? (Beltrani-Scala, “La riforma peniten- 
ziaria,”’ p. 294). 

1 Until 1895, the only cellular prisons in Italy were those in the cities of 
Milan, Turin, Cagliari, and Perugia. All the other Italian prisons were con- 
structed on the old plan of common rooms. In many of them no means were 
provided for separating prisoners awaiting trial from those who have been 
convicted. Often many of the latter would be held a number of years before 
being taken to the penitentiary, with the result that not uncommonly their 
term would expire long before their sentence had been served out. 

In France, in the year 1887, there were but fourteen departmental prisons 
built on the cellular system or adapted to its use, and seven in process of 
construction. The former contained in all 600 cells. On December 31, 1884, 
the total number of persons in detention was 25,231, of which number 10,087 
were not provided with any species of work (D’Haussonville, Revue des 
Deux Mondes, 1 January, 1888, p. 135). The situation had undergone little 
change in 1892, there being then only some twenty such prisons. 


§ 2] INFLUENCE OF THE LAWS 209 


—a thing of vital necessity in every social class — is already 
gone, who has been publicly pronounced guilty of an infamous 
crime. Terror of the word “thief” has the capability of re- 
straining rapacious tendencies. But once a man has this brand 
affixed to him, and is punished as a felon, generally all is over. 
The prison may not, as some contend, create recidivism, but 
at all events it does not hinder its creation. It follows that 
the mitigation of punishments in respect of their duration is a 
mistake. In the case of professional offenders, abridging the 
term of imprisonment means increasing the number of offenses. 
This has been experienced in Italy as a result of the various 
proclamations of amnesty, which reduced by six months the 
terms of all prisoners sentenced for a longer period, and wholly 
remitted the punishment where sentence was for six months 
or less. In each instance, a very perceptible increase of crim- 
inality throughout the whole of Italy was shown by the sta- 
tistics of the following year. 

Recidivism. — It is manifest that the universal increase of 
recidivism is due to the spirit of lenity which at the present 
day is everywhere prevalent. Since criminality is in large 
part concentrated in a single class, its increase or diminution 
necessarily depends upon whether or not the individuals of 
this class find it possible to commit acts of crime. Moreover, 
it is doubtful if the menace of even the severest punishments 
of the penitentiary system can have any restraining effect 
upon hardened criminals. In Sweden, for instance, it is the 
custom for the sovereign to grant a pardon to life-convicts 
after ten years of good conduct on their part, provided that 
some respectable citizen is willing to take them into his em- 
ployment. A life-convict of exemplary conduct for whom a 
respectable citizen is ready to act as sponsor! Could one well 
imagine a situation with better assurances of reformation? 
Nor does this state the whole case. Pardon is here subject 
to the condition that if the liberated prisoner offends anew, 
he will be sentenced to hard labor (‘travaux forcés’’) for life. 
On the one hand, then, we have the presumption of reforma- 


210 CRIMINOLOGY [$2 


tion; on the other, the menace of a drastic punishment. 
Yet, in spite of “this sword of Damocles always hanging over 
their heads, the percentage of recidivism among this class of 
pardoned convicts is very high. In 1868 it attained the re- 
markable figure of 75%. In other words, out of every four 
prisoners thus pardoned, three, because of fresh offenses, 
were sent back to the penitentiary and compelled to serve 
out their life sentences under more rigorous conditions.” ! 

This example suggests another consideration. Taking the 
total number of prisoners who, as shown by Italian prison 
statistics, were discharged from the penitentiaries in the year 
1880, either because of the expiration of their term of imprison- 
ment or because of being pardoned, we find that of 2,181, 
the conduct was good; of 583, fair; and of 172, bad. As to 
the duration of this good conduct in such cases, we are not 
informed. Moreover, the prisoner with us is not required 
to find a sponsor, as he is in Sweden, On the other hand, good 
conduct in prison consists of nothing more than quietness and 
obedience, and these qualities the object of securing a reduc- 
tion of punishment would make it worth while to feign. 
But if any one be credulous enough to believe in the reforma- 
tion of the 2,181 (three-fourths of whom would have been 
recidivists in Sweden), what can we expect of the 583 whose 
conduct was fair and of the 172 whose conduct was downright 
bad? It needs no prophet to predict their recidivation. Is it 
then to be wondered at, that in 1900 the recidivists in the 
Italian penitentiaries constituted 55% of the total number of 
inmates, — “proving,” to quote the official report, “that the 
number of recidivations, which has long been the subject of 
serious concern, still continues to grow larger from year to 
year.” ? 

In France, before 1885, the situation was the same. “From 
the fact,” says Cazot, “that seven-tenths of the accused 

1 D’Olivecrona, “Des causes de la récidive et des moyens d’en restreindre 
les effets,”’ pp. 46, 47 (Stockholm, 1873). 


2 “Statistica delle carceri,” p. xxx (Rome, 1902). From 35,958 in 1890, 
the number of recidivists in prison rose to 45,579 in 1895. 


§ 2] INFLUENCE OF THE LAWS 211 


with criminal records have never received sentences of 
more than a year of imprisonment, the number of recidivists 
twice convicted in the course of one year increased from 6,851 
in 1878 to 7,556 in 1879, the number of those convicted at 
least three times from 2,045 to 2,237 during the same period.” 
Crime, when stimulated, increases. Now imprisonment, 
especially that of brief duration, is a stimulus to crime.! 
Short punishments invite the criminal, monstrous as it may 
seem, to mock the law, to snap his fingers at justice. For the 
hardened apprentices of crime, what is a few weeks’ imprison- 
ment? A happy accident which assures them lodging, food, 
and clothing — a breathing space in their life of adventure. 
Nay, better, in summer they arrange to be arrested in the 
North, in winter, in the South, “quite as people of fashion who 
spend August at Trouville and December at Nice.” The 
vagabonds of Paris prefer to be taken into custody on Wednes- 
days and Saturdays because the dépét bill of fare includes meat 
on Thursdays and Sundays. “Well may the workman shake 
his clenched fist at the jail walls and mutter: ‘In there, are 
criminals who want for nothing, while I and my family try 
to live honestly, and find it hard to get enough to eat.’” 2 

The extremely large proportion of recidivists found by 
Ducpétiaux in the penitentiaries of Belgium — 70% in the 
period from 1851 to 1860 — proves, according to this author, 
“that it is the same individuals who continually commit the 
same crimes, and that criminality tends more and more to con- 
tract its limits and to become concentrated within a definite 
circle.”* Indeed, the increase of recidivism in a ratio exceeding 
that of crime in general indicates that professional offenders 
as a class are multiplying and prospering, while, among the 
rest of the population, the diminution of crime is keeping pace 
with the advance of civilization. This hypothesis is borne out 

1 “Half of the discharged convicts commit new felonies (‘crimes’) or 
misdemeanors (‘délits’) almost immediately after leaving prison” (Rap- 
port du Garde des Sceaux, — Journal officiel, 18 March, 1883). 


2 Reinach, “Les récidivistes,” p. 126 (Paris, 1882). 
5 Beltrani-Scalia, op. cit., p. 194. 


212 CRIMINOLOGY [§ 2 


by the fact that it is precisely in the most civilized countries 
that we find the largest amount of recidivism, — simply 
because in those countries criminality is in a greater degree 
confined to a single class of persons. Sweden, England, Bel- 
gium, and France have more recidivists than either Austria 
or Italy; Northern Italy has more than the Southern prov- 
inces. As one effect of a progressing civilization, the criminal 
offender becomes every day more differentiated from his honest 
neighbors, exhibits a sharper contrast to the population in 
the midst of which he lives and upon which he continually 
makes war — a war disastrous to the public whichever way 
victory lies, for the assailant, if uncaptured, lives on his 
booty, — if taken, he lives as a parasite. 

This continual concentration of an army of common enemies 
should render much less difficult the struggle against crime. 
The disease does not affect all the members of the organism; 
the corrupt humors of the body do not enter the blood, but 
go to the formation of a superficial tumor. The situation is 
one which should readily yield to treatment. 

France, in its legislation providing for the penal exile 
during life! of certain classes of recidivists, has recognized 
the remedy and resolutely applied it.2 The other nations con- 
tinue to put faith in the efficacy of their improved penitentiary 
systems, always repeating the same experiences and never 
meeting with anything but failure. 

1 [“Relégation perpétuelle” (or simply “relégation”’). This punishment 
consists in internment for life in a penal colony beyond seas (“relégation col- 
lective”), or, by exception, in any French colonial possession (“relégation in- 
dividuelle’”’). As distinguished from “relégation,” exile to a penitentiary 


colony attending penal servitude (“travaux forcés) is called “transportation.” 
— TRANSL. ] 

2 From 1886 to 1900, 15,837 habitual criminals were thus banished 
for life. A few years of this legislation have sufficed to produce a marked 
decrease of criminality. As already seen, the more serious crimes have con- 
stantly diminished in number since the closing years of the 1800s. The 
system of anthropometric identification named after Bertillon has materially 
aided in the detection of recidivists. This system has been introduced in 
Buenos Aires, where it is in regular operation, thanks to the intelligent efforts 
of Sefior J. Vucetich, the Director of Statistics. See his book, “‘ Instrucciones 
generales para el sistema de filiacion”’ (La Plata, 1895). 


§ 2] INFLUENCE OF THE LAWS 213 


“Tt is easy enough,” says Tarde, “to throw overboard the 
thing that annoys you, but where are you going to draw the 
line?” True, there may be danger in this method as in every 
other, unless it is safeguarded with definite conditions and 
restrictions. And it is precisely the ascertainment of these 
restrictions and conditions with which we shall next proceed 
to deal in studying the theory of elimination. 


Wie 
stan 
‘i 











CHAPTER I 


Tue Law or ADAPTATION 


“This preservation of favorable individual differences and variations, 
and the destruction of those which are injurious, I have called Natural 
Selection, or the Survival of the Fittest.” 

(Darwin, “‘ Origin of Species,” c. tv.) 
Elimination and Reparation: Theory and Applications. 
The Same: In Relation to the Different Conceptions of Punish- 
ment. 
Intimidation. 
Selection. 
The Correctionalist Theory.! 


a 


tn CO? COR COR cor 
om 99 


§ 1. Elimination and Reparation: Theory and Applications 


THE sense in which we use the word “crime” was defined 
at the outset of our discussion. It has already been made 
clear to the reader that crime in this sense — natural crime — 
stops short of embracing all the immoral and injurious acts 
which ought to be restrained by every civil society. Thus 
it excludes attacks, of a purely political character, upon the 
form of government and, in addition, all such legal disobediences 
as in nowise violate the altruistic sentiments.2 Offenses of 
this description are to be repressed by the State quite as sternly 
as crime proper, but in so doing the State must be careful 
not to confuse the two. For the stamping out of these non- 
criminal offenses, it will employ punishments of greater or less 
severity as necessity dictates, keeping principally in view their 
intimidatory effect — their influence as an example and warn- 
ing to would-be wrong-doers. 

The Natural Law of Elimination. — Then, too, there are 
other immoral acts injurious to certain special aggregations, 
acts which violate the rules of conduct necessary to the exist- 


1 (§§ 3 and 4 = § III of original; § 5 = § IV. — Transt.] 
2 See ante, Part I, c. 1. 


218 CRIMINOLOGY [$1 


ence of private associations with a definite object, be it relig- 
ious, political, or artistic, or connected with the exercise of a 
particular trade or profession or the carrying on of some other 
branch of human activity. In such cases the intervention of 
the State is seldom found necessary: a reaction against the 
attack spontaneously occurs in the aggregation itself, and this 
reaction suffices to cancel the effect of the disturbance. Every 
organism reacts against a violation of the laws which goy- 
ern its natural operation. The same thing is true of every 
aggregation. 

This analogy will be of value to us in determining the manner 
in which, following natural laws, the State, as the representa- 
tive of society, ought to react against crime. According to the 
concept which I have previously explained, natural crime is an 
offense sustained by the moral sense of mankind, taking this 
moral sense as we find it as soon as it has ceased to be the slave 
of the animal instincts or the ferocious and indomitable pas- 
sions of the predatory life, or in other words, when it has 
reached the first stages of civilization. Besides this intimate, 
deep-seated, universal sense, we find a large number of senti- 
ments properly appertaining to particular classes or aggrega- 
tions of individuals and corresponding to the rules of a higher 
and more relative morality, or again, merely to rules of cere- 
mony, etiquette, and good-breeding. Suppose that one invited 
to the home of acultured family should exhibit defects of breed- 
ing incompatible with the habits of life of his hosts? What will 
the latter naturally do? They will take good care not to invite 
him a second time, and if, notwithstanding, he repeats his visit, 
they will decline to receive him. So, with somewhat more 
publicity, the member of a club will be expelled if he is found 
guilty of conduct unbecoming a gentleman. Likewise, the 
public official will be removed from office if he is found un- 
worthy of the trust reposed in him. In general, it may be 
stated that if, by the violation of rules of conduct regarded 
as essential, a member has incurred the reprobation of the class, 
order, or association to which he belongs, the reaction always 


§ 1] THE LAW OF ADAPTATION 219 


assumes an identical form, namely, expulsion. Mark, how- 
ever, that I am not referring to any breach of the rules of 
an association. I speak only of a breach which offends the 
relative morality of the aggregation — the sentiments which 
are, or must be assumed to be, common to all the members 
of the association. The reaction consists in the exclusion 
of the member who is shown to be deficient or lacking in 
adaptation to the conditions of the environment. 

A single fact, it may be added, often suffices to reveal 
this defect or lack of adaptation. Indeed, the particular 
circumstances in which a man finds himself may be said to 
constitute the touchstone of his character. Outside of these 
circumstances there may be no occasion for his defects of 
breeding or morality to become noticeable. The fact that ina 
single instance an individual has failed to govern himself 
according to the requirements of some fundamental principle 
of morality or good behavior is enough to warrant the infer- 
ence that he subordinates either the one or the other to his own 
profit or pleasure. Now, there is a possibility that if he were 
placed under the same circumstances a second time, he would 
submit to the rule. But this possibility will avail him nothing. 
The presumption of his good breeding and honesty existed 
so long as there was no reason to doubt their presence, but it 
exists no longer, and he has now lost the confidence which this 
presumption inspired. 

Elimination the Logical Form of Reaction against Crime. — 
If, then, we turn from the act which is an offense to a few 
people, to the act which shocks the moral sense of society at 
large, we shall find that the reaction can logically take place 
only in an analogous manner, that is to say, by exclusion from 
the social circle. Just as the family of refinement has expelled 
the ill-bred guest as soon as by word or gesture he has dis- 
closed his social deficiencies, just as the private association 
has driven from its ranks the member who has failed to con- 
duct himself as a gentleman, so society as a whole must 
cast out from its midst the criminal man whose single act 


220 CRIMINOLOGY [$1 


has sufficed to make plain his lack of adaptation. In this 
way, the social power will effect an artificial selection similar 
to that which nature effects by the death of individuals inas- 
similable to the particular conditions of the environment in 
which they are born or to which they have been removed. 
Herein the State will be simply following the example of 
Nature. 

Means of Elimination. — The first difficulty arises when we 
come to consider the means of realizing this exclusion from 
society. While it is comparatively easy to expel an individual 
from a definite circle of people, it is quite another thing totally 
to deprive a man of the social life. In the ancient world, 
each country was exclusively concerned with its own exist- 
ence. In the case of capital crimes it shut out the offender 
from its own society: it gave him the alternative of death or 
exile! Apart from the fact that this second form would be 
impracticable, because of the mutual objection of the nations, 
it seems today to be an insufficient form of reaction. For the 
sentiments of pity and probity, which first included only the 
family in their scope, and next included successively the tribe 
and the people, today extend to the whole of mankind. 
Crime is no longer looked at as an injury to the national 
sentiments: it is now regarded as a violation of human senti- 
ments. To be adequate, then, the reaction must not only shut 
out the offender from his fatherland but also from the possi- 
bility of any social life. 

Death, the ordinary means of intimidation or vengeance, 
has also been used in the case of convicted criminals and 
rebels, as the simplest and surest method of elimination. 
As an equivalent, recourse has been had to transportation 
(“déportation”’) which is a form of exile and the only one pos- 
sible in the present state of civilization. But, like exile in gen- 
eral, transportation does not operate a complete deprivation 


1 At Rome as at Athens, the two punishments had the same end: “Cap- 
italia sunt ea quibus pcena mors aut exilium est, hoc est aque et ignis in- 
terdictio, per has enim poenas eximitur caput de civitate” (Dig. Lib. XLVIII, 
Tit. 1, De pub. jud. § 2; Thonissen, “Droit pénal des Athéniens”’). 


§ 1] THE LAW OF ADAPTATION 221 


of the social life. It could attain this end only if the offender 
were to be removed to a place not only uninhabited, but 
wholly cut off from communication with any human society. 
Such places, however, are not to be found. We can hardly 
imagine that there is an island in Oceanica past which a ship 
does not sometimes sail. 

Another equivalent is imprisonment for life (“réclusion 
perpétuelle”). This, however, always leaves open the possi- 
bility of escape or pardon. The only absolute and complete 
means of elimination, therefore, is death. 

Without entering upon a discussion of the death penalty 
in general, I desire at this juncture to anticipate a possible 
criticism, not of my premises, but of my conclusion. “Crime,” 
it might be urged, “reveals the man who lacks adaptation for 
the social life. Deprive him then of society, but not of animal 
life. The taking of life is an excessive reaction.” To Rous- 
seau, who believed in a natural state of man as distinguished 
from the social state, this objection would have seemed well 
taken. But at the present day, we cannot admit the existence 
of any natural state other than a state of society, whatever 
stage of evolution the particular society may have attained. 
Death alone can deprive man of the social life. Set down in 
the midst of the Sahara or the fields of polar ice, he will in- 
evitably perish, unless he encounters human beings; encoun- 
tering them, he will be a participant in a social life, however 
crude it may be. Moreover, since social life is the object of 
human existence, what is the good of preserving his animal 
existence, if society shuts its doors against him? The fact of 
irrevocableness, which opponents of the death penalty use 
as a bugbear to frighten the unthinking, is in my judgment 
the chief argument in its favor. For the reaction begins and 
ends at the same instant, without leaving open any door to 
false pity. Nor is it any answer to the main question to say 
that inasmuch as “‘infinite forms of social life” ! exist, there 


1 Carnevale, “La questione della pena di morte nella filosophia scientifica , 
(Turin, 1888). 


’ 


222 CRIMINOLOGY [$1 


is no such thing as an absolute impossibility of adaptation to 
the social life, — that if the extreme criminals represent an 
inferior stage of moral evolution, they are capable of being 
assimilated to the savages, who are on the same moral level? 
How can we apply the term “social life” to the existence led 
by the cruelest, the most degenerate, the nearest the brute 
creation, of all mankind? If the idea is to make the savages a 
present of our criminals, well and good; but this would be 
no more than a disguised form of the death penalty. 

It has already been explained why the punishment of death 
violates the sentiment of pity in appearance only, and it has 
been pointed out that if there is an identity between the fact 
of crime and that of execution, there is none between the 
sentiments which these facts respectively provoke.! But this 
statement is applicable only to a single group of criminals, to 
those who are entirely destitute of this very sentiment of 
pity, which is so organic and congenital in the normal man 
of the higher races, that the individual who wants it appears 
as a sort of psychic monstrosity and hence repels the feeling 
of sympathy from which pity is derived. In sundering, to 
use the words of Dante, “lo vincolo d’ amor che fa natura,” 
such an individual has placed himself without the pale of 
mankind. Henceforth nothing can re-unite him to associated 
men. It is therefore society’s right to rid itself of his presence. 

On the other hand, the moral sense of mankind will not 
tolerate the application of the death penalty to offenders of 
other categories, — to those whose nature does not appear 
entirely inexplicable, whose psychic anomaly is less pro- 
nounced, who, in fine, although differing from the normal 
man, fall short of being psychic monstrosities. Such are the 
offenders of the two classes which we have distinguished from 
that of the extreme criminals.2. The first of these classes is 
characterized by an insufficient measure of the sentiment of 
pity. Its members, as we have explained, are persons without 
any great repugnance to crime, who are capable of committing 

1 See ante, Part I, c.1, § 8. 2 See ante, Part II, c. 1, § 6. 


§ 1] THE LAW OF ADAPTATION 223 


criminal acts under the influence of social, political, or relig- 
ious prejudices, or who may be impelled to such acts by a 
passionate temperament or alcoholic excitation. In the second 
class are comprised offenders who are destitute of probity, 
a sentiment of more recent origin than pity, less enrooted in 
the organism, and due not only to heredity, but also, in great 
part, to tradition and the examples of the family circle and 
the environment in general. So that, even when the absence 
of this sentiment is complete, these men appear to us as the 
evil products of society rather than of nature, as unfortunates 
rather than monsters. Despite the lacunz in their moral 
instincts, they do not cease to be our fellows, and, although 
they are a source of harm, we cannot reconcile ourselves to 
the idea of taking their lives as a means of eliminating them 
from the social life. 

This is a lesson which history teaches. The laws of Draco 
were repealed immediately upon the termination of his archon- 
tate, in deference to the public conscience, which had been 
wounded by these laws more than by the offenses at which 
they were aimed. So too, in later times, irrespective of its 
being sanctioned by law, the death penalty has always excited 
public indignation when inflicted for offenses not seriously vio- 
lating the moral sense. This revolt of the popular conscience 
admits of easy explanation. Man is by nature a social being. 
Without having entered into any compact with society, he 
forms a part of it. He is there because he has nowhere else 
to go, and whatever he may do, he must stay there, except in 
one instance. That instance is where he presents anomaly 
such as deprives him of the capability of becoming a social 
being and consequently renders his adaptation impossible. 
This is why, m human society, the absence of the qualities 
essential to the aggregate existence changes the necessity of 
social life into the opposite necessity, namely, that of severing 
every bond of union with the inassimilable individual. And 
it is precisely into this idea of necessity that the idea of law 
resolves itself. The individual has a right to the social life 


224 CRIMINOLOGY [$1 


because he has absolute need of it. But his personal necessity 
in this regard must be subordinated to the necessities of society. 
Metaphorically speaking, the individual represents but a 
cell of the social body.t Consequently, when he is a source 
of harm to the body, he can have no right longer to remain a 
part of it. ; 

But let the reader not misunderstand. Such a necessity 
does not exist in every case of offense to the moral sentiments 
of the aggregation. It exists only where their violation is the 
symptom of a permanent psychologic anomaly which renders 
the subject forever incapable of the social life. Now, this sort 
of incapacity cannot be predicated of other than criminals of 
our first class — those offenders, who, as pointed out in a for- 
mer place, are prone to commit murder solely from egoistic 
motives — the influence of prejudices or the faults of the en- 
vironment in nowise contributing. In none of the other classes 
does this absolute incapacity exist. To apply the death pen- 
alty to members of the latter classes would cause the public 
conscience to revolt. Hence it is to be employed only against 
criminals of the first class. 

For the others, adaptation is always possible, but the diffi- 
culty is to find the environment which will make it probable. 
We encounter individuals who are incompatible with any civil- 
ized environment. Their savage instincts are incapable of 
yielding obedience to the rules of pacific activity. They are fit 
only for the life of nomadic hordes or primitive tribes. To pro- 
tect society against them, but two means exist: imprisonment 
for life or permanent expulsion. In many cases the first 
method would be an excess of cruelty. If a nation possesses 


colonies, lands still uninhabited, the second method would be 


1 In this view of the case lies the complete answer to the suggestion of De 
Aramburu that the principle contended for serves only to establish the right 
of might, the power of the majority (“La nueva ciencia penal” — Madrid, 
1887). For this is very far from being true. We are here concerned with 
neither might nor numbers. It is not a case of one part being destroyed by 
the other parts, but of an organism ridding itself of a noxious element — an 
entirely different matter. 


§ 1] THE LAW OF ADAPTATION 225 


the preferable one. For in such surroundings his evil activity 
would stand the offender in no stead, while the necessity of 
preserving life would be a continual stimulus to labor, which 
would thus become an indispensable condition of his existence. 
Transportation (“déportation”’’) is therefore the means of 
elimination necessary in the case of professional thieves, 
vagabonds, and habitual offenders in general. Only in these 
entirely new conditions of existence will their adaptation to 
the social life become possible — a conclusion which is borne 
out by numerous historical examples.! 

With respect to offenders who lack repugnance to acts of 
cruelty, but who commit such acts only under the influence 
of their environment, as, for example, the authors of endemic 
crimes, it is evident that the elimination to be aimed at should 
not be absolute but should be limited by conditions of time 
and place. Here internment in a penal colony or settlement 
beyond seas (“relégation”) is the appropriate form. While 
it takes the individual out of his deleterious environment, 
it does not, like the prison, degrade him or destroy his activity. 

In the case of youthful offenders whom there is still a possi- 
bility of reclaiming to honest activity, the elimination should 
always be relative. For such persons the agricultural colonies 
of Northern Europe have worked wonders. French experi- 
ments in this direction have also been attended with favorable 
results.” 

Finally, there are cases where elimination need not go be- 
yond the expulsion of the offender from his particular social 
situation. Thus, he may be permanently prohibited from exer- 
cising the profession of which he has rendered himself un- 
worthy, or deprived of the civil or political rights which he 
has made the subject of abuse. 

We have here a number of methods of elimination not less 
logical than that of absolute exclusion of the criminal from all 


1 See Reinach, “Les récidivistes ” (Paris, 1882). 
2 For a description of these colonies, see D’Olivecrona, “Des causes de la 
récidive,” pp. 167-190 (Stockholm, 1873). 


226 CRIMINOLOGY [$1 


social relations. All depends on the greater or less possibility 
of adaptation to a given environment and upon the conditions 
which render this adaptation probable. 

Enforced Reparation as a Form of Repression. —In de- 
scending the scale of criminality, we come to a class of 
offenders whose moral anomaly is hard to define. Although 
guilty of crime, of true natural crime, and hence inferior 
beings, they cannot be said to lack moral sense. The fact of 
their crime, it is true, demonstrates the insufficiency of one 
of the altruistic sentiments, but this fact has been chiefly due 
to the force of really exceptional circumstances, or to the 
pressure of a situation which is not likely to recur. Suppose, 
for example, that a criminal breach of trust is committed 
by a man who had hitherto followed an honest calling and 
been in the receipt of an adequate income. Nothing in his 
previous conduct, let us say, or in his conditions of life, 
appears in any way to be capable of impelling him to crime. 
Yet it will not do to say, because of this fact, that we are here 
dealing with a normal man. Hardly anything could be more 
inaccurate, in my opinion, than the adage: “Occasion makes 
the thief.” To be true, the phrase should be: “Occasion 
enables the thief to steal.” For a deficiency in the innate 
sentiment of justice or, more exactly, in the instinct of probity, 
is in all cases an indispensable condition of every crime against 
the property of others. Nevertheless, if the occasion has been 
an exceptional one, if there is little likelihood of its future 
recurrence, there is no need of employing any means of elim- 
‘ination. For the fact that the individual in question, in spite 
of his fundamental lack of honesty, has successfully resisted 
ordinary occasions, has yielded but once and then to an oc- 
casion which in all probability he will never again encounter, 
leads us to conclude that he is not a continual danger to society. 
Especially will this be the case, if his offense is made a distinct 
source of detriment to him, if besides losing what he had hoped 
to gain by breaking the law, he sees himself obliged to suffer 
the loss of money out of his own pocket. 


§ 1] THE LAW OF ADAPTATION 227 


This result will be attained by compelling the offender 
to make good the material and moral damage caused by his 
crime. He may be made to pay its amount in money, or else 
to work for the benefit of the injured person until restitution 
is effected. Such a measure could be adopted in the case of 
ordinary larceny (“vol non qualifié”), certain species of crim- 
inal fraud, criminal bankruptcy, wilful injuries to property 
(“dégat volontaire a la propriété,” “dévastation”’), setting 
fire to crops and to growing timber, strikings and woundings 
(“coups et blessures’’) in the course of a quarrel, defamation 
(“diffamation”), the use of insulting language (“injures”), 
minor offenses against chastity, and the like, when the same 
conditions surround the commission of the crime as in the 
case before put, that is to say, when neither the past or present 
conduct of the offender nor his conditions of life are such as 
foreshadow a relapse into crime. If the injury is reparable 
and the offender is willing to make reparation, elimination 
would be both needless and cruel. 

We have thus what appears to be a new form of repression: 
enforced reparation. It is a means which will prove sufficient 
in many cases, provided that the reparation is full and com- 
plete and that the assessment of damages is made to include 
not only the material injury but also the mental suffering 
occasioned to the injured person. The injury, however, is 
not confined to the latter. Society as a whole suffers both 
moral and material injury — moral injury from the fact of 
the crime, material injury because of the expense of the police 
and the courts, which the public is called upon to defray. 
The reparation then must not stop with the indemnification 
of the injured person: it is necessary that a fine be paid to the 
State. Under such conditions, reparation in frequent instances 
could be very advantageously substituted for elimination. 
But for the enforcement of this measure some means much 
more effective than the present procedure will have to be 
devised. There must be a sure method of preventing the 
offender, if solvent, from evading payment, or, if in a state of 


228 CRIMINOLOGY [$1 


insolvency, real or feigned, of forcing him to devote his labor 
to the benefit of the injured person. 

Spencer’s Theory of Restitution and Liberation. — The 
present theory amounts, in effect, to a narrowing of that out- 
lined by Herbert Spencer. The distinguished philosopher 
proposed to make the time it would take the offender to repair 
the damage occasioned by his crime determine the length of 
his punishment. Upon making restitution, he would be dis- 
charged from confinement, provided that some person of good 
character and means would give bail for his good behavior. 
In this way, according to Spencer, we would have “‘a self-act- 
ing regulator of the period of detention.” Persons convicted 
of “‘heinous crimes” would never be able to find liberators, 
and hence would remain in prison for life. For second of- 
fenders, the finding of the requisite bail would be a matter of 
considerable difficulty. On the other hand, individuals guilty 
of but trivial transgression, whose previous reputation had 
been good, could easily procure the proper surety, and thus, 
after having repaired the damage, obtain their immediate 
release from custody.! 

The fault of this theory, in my judgment, is that it over- 
looks the general principles of the very philosophy of which 
Spencer is the exponent. If the latter had thought of applying 
to criminality the laws of adaptation and selection, he would 
have immediately realized the necessity of classifying criminals 
according to their psychologic characteristics, of distinguish- 
ing them so as to ascertain, on the one hand, the cases in which 
adaptation is possible and, on the other, those in which no 
hope of adaptation being left, it is merely a question of ridding 
society of an injurious element. Had he proceeded thus, he 
would have perceived, in many cases, the need of an absolute 
elimination from all social environment, in others, that of a 
relative elimination. Since this need is one which criminology 
is quite capable of determining, any such demonstration of it 


1 Herbert Spencer, “Essays Scientific, Political, and Speculative,” “Prison- 
Ethics,” in Vol. ITI. 


§ 1] THE LAW OF ADAPTATION 229 


as would be afforded by the failure of a person of good 
character to come forward in behalf of the offender would 
be wholly superfluous. It is Spencer’s belief that persons 
guilty of “heinous crimes” will be wholly unable to find 
liberators. But he does not give us any criterion by which 
we may distinguish heinous crimes. Then, too, there is always 
a lenient minority: there are places where no convict, what- 
ever his crime, would be long without the required sponsor. 
Moreover, friendship, as every one knows, is ever ready to 
condone even the gravest fault. And where friendship falters, 
money will always prevail. The bail, it is true, is to be fur- 
nished by persons of good character. But where does good 
character begin and where does it end? I have no doubt that 
in the business world every man who makes a fair living and 
is without a criminal record, would be regarded as a person of 
good character. It is further true that, in certain cases, the 
liberation in question may be withheld: “No bail could com- 
pensate for murder; and therefore against this, and other 
extreme crimes, society would rightly refuse any such guaran- 
tee, even if offered, which it would be very unlikely to be.” ! 
But what are the extreme crimes to which the author has refer- 
ence? This expression seems to presuppose a distinction which 
he does not make, or which, at least, is not his point of de- 
parture. Does it intend such crimes as the rape of a female 
child, the wilful infliction of cruel physical injuries (“sévices’’), 
mayhem (“mutilations”), woundings occurring without warn- 
ing and as the result of premeditation, or robbery with a 
deadly weapon? But should it not also include all other 
offenses which equally reveal the deep-seated, incurable 
immorality of the agent? We believe that it should. In a 
word, it is of the highest importance to single out a class of 
criminals whose adaptation to the social life, if not impossible, 
is, at least, of so little probability, that society cannot unques- 
tioningly suffer them to remain a part of itself, but has the 
right and even the duty to effect their elimination with all 
possible speed. ¥ Op, of 


230 CRIMINOLOGY [$2 


§ 2. The Same: In Relation to the Different Conceptions of 
Punishment 


The notions involved in the preceding view of social reac- 
tion against crime are present in the basic consciousness of all 
civilized peoples. Although the apparent end of punishment 
is social vengeance, that is to say, the desire of making the of- 
fender suffer a harm approximately equal to that of which he 
has been the cause, it is easy to see that what society actually 
desires is, first, to exclude the criminal from its midst, and, 
secondly, to compel him as far as possible to repair the evil 
which his offense has occasioned. 

Vengeance. — All punishment undoubtedly originated in 
individual sentiments of vengeance. The law of the talion 
is there to prove it. But today these sentiments, while still 
persisting, have acquired a much milder character. This 
result in no inconsiderable degree is due beyond question to 
the moral teachings of the Gospel. What has chiefly effected 
the minimization of these sentiments, however, is the fact 
that for generations men have been accustomed to see the 
offender punished by the social power. This is why these sen- 
timents reappear in all their pristine ferocity, in lands where 
the laws are of insufficient severity or else are laxly enforced. 
Especially do they come to light in the lower social strata, in 
the classes which in respect of the moral sentiments remain 
unaffected by the slow working of the centuries and are lag- 
gards in the march of moral progress. 

Expiation. — Among some ancient peoples the idea of 
equivalence to the injury was ennobled by associating with it 
that of expiation. The same thing characterizes certain 
modern theories. The belief is that the harm caused by the 
offense cannot be repaired, even in the soul of the offender 
himself, except by means of suffering on his part. Suffering 
alone can purify the wicked: it is the necessary consequence 
of sin. Suffering contributes to the repentance of those who 
experience remorse, and gives rise to this sentiment in those 


§ 2] THE LAW OF ADAPTATION 231 


who are without it. Such is the conception of punishment 
found among the ancient Semites and the Hindus, a concep- 
tion which prevailed in the ecclesiastical law and throughout 
the Middle Ages, and which had its highest scientific expres- 
sion in the philosophy of Plato and Kant. 

At the present day, however, this doctrine can find no 
place. The hypothesis upon which it rests is contradicted by 
experience. It is generally recognized that in criminals the 
faculty of repentance and remorse is almost non-existent, and 
that, in any event, it cannot be originated by the infliction 
of physical suffering. The only individual who can commit 
crime, is the man who has not kept abreast of other men, 
either because his moral sense has always been lacking, 
or else because it has failed him at a particular juncture. 
No other hypothesis is possible. It is evident that if the 
common morality had exerted any influence over this man, 
he could not have become an offender. In every such case, 
then, we have to do with a permanent or transitory anomaly. 
The idea of moral expiation by means of punishment, that is 
to say, through suffering to be undergone by the offender, pro- 
ceeds on the assumption that the latter thinks and feels as the 
generality of men, and in spite of this fact, has voluntarily 
committed the crime to gratify his passions. But note the 
obvious antinomy. If passion has overcome duty, it is be- 
cause duty was not strong enough to overcome passion: 
in any struggle, it is always the weaker which succumbs. 
It is manifest, then, that the morality of the offender is lacking 
in energy or, at least, is inferior to that which commonly 
prevails. This is why he feels and thinks differently from the 
normal man. The absence or weakness of a sentiment we can 
try to remedy by education, or when that appears impossible, 
by impeding the acts which this absence or weakness 
occasions. But it is inconceivable that the social suffering 
can be morally compensated or neutralized by any suffering 
which the offender himself is made to undergo. One evil, 
in other words, cannot be repaired by another. 


232 CRIMINOLOGY [$2 


The expression is still sometimes heard in the common 
speech, that blood is washed out by blood. But this is an idea 
which embodies the sentiment of revenge: it is something 
quite other than the mystic concept of moral expiation. 
The latter is derived from the fact of remorse which is produced 
in an unperverted conscience, a conscience, that is to say, 
still accessible to the moral sentiments; these after having 
remained latent for a time, come to light anew and give rise 
to repentance. Thereby is occasioned a state of sorrow, 
a true state of suffering, which sometimes lasts while life 
endures and saddens every waking moment. But the idea 
that such feelings can be aroused by physical suffering is a 
strange one. It recalls the belief of the Hindus that water 
could wash away the stains of the soul, or the doctrine pre- 
vailing in the Church of the Middle Ages that heresy was 
purged by fire. 

No doubt, the punishment suffered by the offender some- 
times brings about repentance, because he knows that his 
crime is the cause of his suffering. But between this sort of 
repentance and remorse for having caused harm to others, 
there is an immeasurable gulf. Only upon the latter sentiment 
can moral expiation be founded. And this sentiment is one 
which needs no physical suffering to produce it. It may indeed 
exist contemporaneously with physical suffering but purely 
as an accident. 

Elimination a Demand of Public Sentiment. — However 
slight be the stress laid upon the idea of expiation, it becomes 
plain how difficult it is completely to dissociate it from the 
idea of vengeance for crime, the basis of which, manifestly, 
is the desire to inflict suffering upon him who has been the 
cause of suffering. Nor can it be denied that even among 
the most civilized people punishment seems to be the expres- 
sion of social vengeance, that is to say, the returning of 
evil for evil. The criminal offender, undeniably, is the object 
of universal hatred and indignation. And necessarily so, 
because the organic conditions that explain the anomaly 


§ 2] THE LAW OF ADAPTATION 233 


to which the crime is due, are a subject for the study of 
scientific specialists and cannot well be a matter of popular 
knowledge. Moreover, even if hatred disappears from the 
minds of those who know the causes, another sentiment not 
very dissimilar will take its place, namely, repugnance — 
a feeling of aversion for a maleficent being who is unlike 
other men. But whether hatred or repugnance, the result 
is the same: there is the same desire to be delivered from 
possible contact or relationship with such an individual. 
If his disappearance can be effected, that is sufficient. A 
civilized people will no longer tolerate unnecessary cruelty 
in punishing. Tortures such as were inflicted upon Damiens! 
would not be countenanced today: even in the 1700s the cir- 
cumstances of his execution aroused the indignation of the 
people of Paris. If the death penalty still exists, it is because 
it is the only complete, absolute, and irrevocable means of 
elimination that we have at command. Were it possible to 
find another of equal efficacy, which would spare the offender’s 
life, we may be sure that it would be speedily adopted. The 
moral sense, basically injured, cannot consent that the man 
who, in an egoistic end, either has destroyed or has shown him- 
self capable of destroying his fellow-man, shall longer partici- 
pate in the social life. When the news of some atrocious crime 
reaches us, the first thing we inquire is whether the perpetra- 
tor has been arrested. Nor do we omit this question, even if 
the circumstances convince us that there is no danger of his 
taking to flight. Public opinion, the true public opinion and 
not that of legal theorists, demands that the thief, the mur- 
derer, the forger, when there is reasonable probability of his 
guilt, shall be immediately separated from society, and this 

1 [Robert Francois Damiens, who, in 1757, attempted the assassination 
of Louis XV of France. ‘He was condemned as a regicide, and sentenced 
to be torn in pieces by horses in the Place de Gréve. Before being put to death 
he was barbarously tortured with red-hot pincers, and molten wax, lead, 
and boiling oil were poured into his wounds. After his death his house was 
razed to the ground, his brothers and sisters were ordered to change their names, 


and his father, wife, and daughter were banished from France” (7 Encyc. 
Brit., 11th ed., p. 788). — TRANSL.] 


234 CRIMINOLOGY [$2 


without waiting for the fact of his guilt to be legally deter- 
mined. To see him free and master of his fate, pending the 
result of the proceeding against him, is a thing repugnant to 
the moral sense. And precisely for this reason, imprisonment 
pending trial (“prison préventive”) is an institution which 
still exists and will always continue to exist, despite the con- 
trary views of certain doctrinaires whose habit it is to consider 
all the social problems in the same superficial and one-sided 
fashion. 

Since, then, segregation and elimination are in point of fact 
realized by punishment, society demands that punishment 
be applied, and since punishment necessarily is painful, 
suffering is necessarily involved. So far is this true, that the 
law in nowise changes the punishment, even where the offender 
has committed the crime for the sole purpose of incurring the 
punishment. Men are known to kill so as to be put out of 
existence themselves, or to steal for the sake of gaining 
entrance to the shelter and idle life of the prison. Although, 
in such cases, death on the gallows or a term of imprisonment 
does not represent an evil for the offender, it is nevertheless 
applied, and society is quite as well satisfied, as if the punish- 
ment had been dreaded and detested by the offender. Suffer- 
ing, therefore, is not the end of the reaction demanded by 
public sentiment, but in the nature of things is always asso- 
ciated with the real end, namely, elimination of the inassimi- 
lable individual. 

Public sentiment thus coincides with the rational method 
of social reaction and, perhaps unconsciously, has no other 
tendency than that of bringing about the same effect. It is 
important, however, to notice that this tendency is not the 
direct result of any process of reasoning by which is demon- 
strated the social utility of elimination, in so far as this makes 
impossible future, and otherwise probable, offenses on the 
part of the same criminal. All that we can say is that this idea 
of prevention, as well as that of making the punishment an 
exemplary one, arouses the sentiment in question and rein- 


§ 2] THE LAW OF ADAPTATION 235 


forces its expression. That the desire of society to extirpate 
an inassimilable individual in no way depends upon any 
direct consideration of utility, the following examples will 
show: 

Suppose that a man who has received, or believes that he 
has received, an injury, who has been wronged, or thinks that 
he has been wronged, is impelled by implacable hatred to kill 
his real or supposed enemy. It is quite probable that he will 
never again shed blood in the course of his life, for no other 
person could be hated by him as much as he had hated his 
victim. 

Again, suppose the case of a man who, because of his strait- 
ened circumstances, is unable to maintain the same standard 
of living as others in his social circle. By poison or other 
means, he hastens the death of a millionaire uncle of whom he 
is the sole heir, and obtains his estate. This object attained, 
he will in all probability never have occasion to hurt a hair on 
another man’s head. 

The same thing is true of an infanticide committed by a 
betrayed girl who hopes thus to save her reputation, or of a 
parricide committed through some peculiar motive which 
will never reappear. Since for offenses of this description the 
common sentiment exacts punishments of great severity — 
of much greater severity than it invokes in the case of thieves, 
incendiaries, and forgers, who are a permanent source of danger 
to all citizens alike, — fear for the future is evidently not its 
mainspring. 

The public conscience therefore demands reaction against 
crime, even where it is not concerned with the thought of the 
future. It seeks the punishment of the criminal not only 
“ne peccetur,” but also “quia peccatum.” 

Justification of the Principle “Punitur quia peccatum”: 
its Reconcilement with the Principle “Punitur ne peccetur.” — 
The question now presents itself whether this sentiment whose 
existence, we have seen, is incontrovertible, is a reasonable 
sentiment, and hence capable of being reconciled with the 


236 CRIMINOLOGY [$2 


theory for which we contend, or whether, on the other hand, 
it must be regarded as one of those errors of the human mind 
which are to be corrected and not to be followed. It might 
be urged that, according to our theory, the reason why elim- 
ination is the rational mode of reaction against crime, is that 
the latter is the symptom of a want of adaptation, and that 
want of adaptation is something which plainly has reference 
to the future, because if the individual thought to be inassimil- 
able later shows his fitness for the social life, elimination 
would be no longer in anywise justifiable. This is no doubt 
true. But it is one thing to say that an individual has become 
fit for society, and quite another to say that he probably 
will not commit a second crime in all respects the same as that 
of which he already has been guilty. 

As occupying the foremost place in the criminal ranks, we 
have described a class of men who are complete moral degen- 
erates, whose natures are exclusively egoistic, and yet who are 
at the same time capable of energy and activity when it comes 
to satisfying their passions. Now, the instant it becomes clear 
that we have to do with a character of this type, we are com- 
pelled to say that the individual is unfit for the social life. 
And this is true even though there be little probability of his 
repeating the same manner of crime. The fact remains that 
we have discovered a man in whom the moral sense offers 
no resistance to his perverted instincts and criminal impulses. 

It is then that society may say to this individual: “Under 
present conditions my existence is founded upon the senti- 
ments of pity and justice. You are destitute of these senti- 
ments. You cannot therefore belong to me. You who have 
murdered your father, may say that I have nothing more to 
fear from you, because you had but one father to murder. 
But your words are vain. Your crime has made it manifest 
that you totally lack the sentiment of pity, that in you there 
is nothing which can restrain your savage impulses. Who- 
soever looks upon you will fear for his reputation, his property, 
his happiness, his life. Your anomaly is too great for you to 


§ 2] THE LAW OF ADAPTATION 237 


participate in that sentiment of sympathy which is a common 
bond among honest men. You cannot participate in this sen- 
timent, precisely because you are incapable of experiencing 
it. In you, men no longer see their fellow-man; between them 
and you every tie is sundered. For you there remains naught 
but suppression.” 

This utterance would be characterized by the strictest logic. 
The mode of reaction which society thus would follow finds 
its exact analogy in that which every other aggregation with 
a definite object is accustomed to use. As has already been 
seen, in every lesser association the violation of principles of 
conduct regarded as fundamental means the expulsion of the 
offender. From this very fact, if society did not react in an 
analogous manner, prohibition of crime would be proportion- 
ally less effective than the prohibition of other immoral 
actions. For in that case, while the infringement of the lesser 
association’s rules results in the loss of participation in the 
advantages of the association, crime, on the other hand, a vio- 
lation of the essential laws of society at large, would not bring 
about the loss of participation in the social life. The lesser 
association knows well how to rid itself of a member whom it 
has disqualified. And its judgment of disqualification is based 
upon his deficiency in respect of the kind of character which 
it requires of all who belong to it. 

The greater association which, by antonomasia, we call 
“society,” acts in nowise differently in eliminating such of its 
members as are proved to be destitute of the commonest, 
most elementary, and most necessary of the human sentiments. 
Hence the parricide who cannot repeat the same offense, the 
infanticide mother who has no more infants to smother, the 
man who lying in wait slays his one mortal enemy — each 
and all are beings incompatible with society. They are desti- 
tute of one of the fundamental sentiments of public morality, 
namely, the sentiment of pity; and it has been proved that 
in the absence of this moral resistance their criminal impulses 
are without other restraint. 


238 CRIMINOLOGY [§2 


To recapitulate: Reaction in the form of elimination is the 
socially necessary effect of the commission of crime (“quia 
peccatum”). And if it be true that the social organism, like 
every other physical organism, is governed by invariable laws 
upon which its existence depends, then, in addition to being a 
necessary effect, this reaction is a natural effect. It is a prin- 
ciple of biology that the individual succumbs as soon as he 
becomes unable to withstand the action of his environment. 
The difference between the biologic and moral orders is, that 
in the former, selection takes place spontaneously by the death 
of the unfit individual, whereas in the latter, since the individ- 
ual is physically fit for life and since he cannot live outside 
of the social environment (to which, however, he cannot 
be adapted), selection must take place artificially, that is to 
say, by the act of the social power in effecting that which in 
the biologic order nature herself accomplishes.* 

In the second place, elimination tends to the conservation 
of the social organism, by ridding it of members who are with- 
out the requisite fitness (“ne peccetur”). Between the two 
formule which exponents of the two antagonistic schools 
have been accustomed to place in opposition, there exists, 
then, no real contradiction. On the one side, for example, 
is Kant: “If civil society were on the verge of dissolution, 
it would be its duty to put to death the last murderer found 
in its prisons, so that every offender might bear the punishment 
of his crime.” On the other, Romagnosi: “If but one crime 
had been committed and it were morally certain that no others 
would follow, society would have no right to punish.” ? 
Fantastic as is the first idea, the second cannot be any more 
_ 1 Nature scarcely troubles herself about immorality. She distributes 
impartially the vital force throughout the whole universe, without stopping 
to inquire whether or not it will serve the interests of morality. In bestowing 
strength and genius, she makes no distinction between the natural child and 
the child born in lawful wedlock. Normal conditions of development and a 
propitious soil are all that she requires. . . . (Prins, “Criminalité et répres- 
sion,” p. 72, — Brussels, 1886). 


2 See Liszt, “Der Zweckgedanke im Strafrecht ” (Zeitschrift fiir die ge- 
sammte Strafrechtswissenschaft, 1882). 


§ 3] THE LAW OF ADAPTATION 239 


readily accepted, since, according to our theory of natural 
crime, it involves a contradiction in terms. 

Every natural crime signifies a total or partial lack of 
adaptation to the social life. It brings to light the moral 
anomaly (curable or incurable). In other words, it indicates 
that the individual in question has the capacity for crime — 
a capacity which in other men is either not recognizable or 
cannot be definitely ascertained, or else is presumably non- 
existent. In the case of a true natural crime, therefore, 
there is no room for “the probability that its author is not 
capable of committing other offenses.” This probability can 
exist only where the offender is a normal being. But in such 
case there would be no crime, because crime is incompatible 
with the existence, or at least the energy, of the moral sense. 
Absence or weakness of the moral sense always carries with 
it the possibility of new crimes. Once recognized, this capacity 
is not to be tolerated. It severs the tie between the individual 
and society, for the only common bond which unites asso- 
ciated men is the presumption that all possess this minimum — 
measure of certain sentiments, the violation of which is crime. 

Notwithstanding the fact of crime, it is not always neces- 
sary to eliminate the offender. As we have indicated, repres- 
sion sometimes may properly take the form of enforced repara- 
tion. This should be the case when the psychic anomaly 
is not strongly accentuated and when the offense is of such 
a minor character that society can afford to experiment, 
before adjudging that the offender is unfit for the social life 
and that, therefore, the community must be freed from his 
presence. In the last chapter of this work we shall endeavor 
to determine with some degree of accuracy the cases in 
which elimination and enforced reparation are respectively 
appropriate. 


§ 3. Intimidation 


It has been objected that the measures thus proposed com- 
pletely ignore the element of intimidation, that they are solely 


240 CRIMINOLOGY [$3 


concerned with preventing a repetition of the criminal fact 
on the part of the individual who has already offended and 
not on the part of others; that, in short, they pay no atten- 
tion whatever to the effect of example. “As if,” says Tarde, 
“the vicious disposition of the individual were alone to be 
feared, and contagion and dangerous customs were matters 
with which legislation had no occasion to deal.” ! 

In order to determine the validity of this criticism it will 
be necessary for us, in the first place, to summarize certain 
general notions as to the preventive effect of punishment, 
and, in the second place, to inquire whether this preventive 
effect would be in anywise lessened by the adoption of elim- 
ination and reparation in lieu of the punishments of the present 
system. 

The Moral Motive. — At the outset, it must be noted that 
penal repression gives rise to certain motives of conduct, 
by the very fact that it excites and upholds the sentiment 
of duty. There can be no question that the common moral 
sense, in the course of many generations, sometimes undergoes 
a gradual modification, as the result of the law recognizing 
the criminal character of a given act or divesting a given 
act of its previously recognized criminal character. “If 
discovery of prohibited acts were not to be followed by punish- 
ment, the number of such acts would no doubt increase. But 
this increase would not be immediately perceptible. It would 
come about only in a slow and indirect fashion, as the result 
of a series of motives other than the fact of impunity, because 
if it were to be seen that acts formerly forbidden are now 
permitted, the sentiments of honor and justice, as they relate 
to such acts, would be gradually destroyed in men’s minds.”’? 

All the sentiments may be traced back to primitive ratio- 
cinations which have since become transformed into instincts, 
or indeed, to experiences of utility undergone by our ancestors. 


1 Tarde, Positivisme et pénalité (Archives de l’anthropologie criminelle, 
Vol. II, p. 55, — 1887). 

2 Von Holtzendorff, “Das Verbrechen des Mordes und die Todesstrafe,” 
c. VIL. 


§ 3] THE LAW OF ADAPTATION 241 


And among these experiences must certainly have been that 
of the pain-bringing reaction provoked by immorality and 
crime, a. reaction which, at first individual, becomes social 
as soon as the State has taken form. The ratiocination to 
which experiences of this sort were bound to give rise, culmi- 
nated in the instinctive feeling of the evil in crime, and this 
feeling has been transmitted by psychologic inheritance. 
The element of coerciveness “originates from experience of 
those several forms of restraint that have . . . established 
themselves in the course of civilization. . . . This sense of 
coerciveness becomes indirectly connected with the feelings 
distinguished as moral. For since the political, religious 
and social restraining motives, are mainly formed of repre- 
sented future results; and since the moral restraining motive 
is mainly formed of represented future results; it happens 
that the representations, having much in common, and being 
often aroused at the same time, the fear joined with the three 
sets of them becomes, by association, joined with the fourth. 
Thinking of the extrinsic effects of a forbidden act, excites a 
dread which continues present while the intrinsic effects of the 
act are thought of; and being thus linked with these intrinsic 
effects causes a vague sense of moral compulsion.” ! 

Even where the moral sense is organic and highly refined, as 
it is in individuals of advanced psychic development, it is 
always accompanied and reinforced, so to speak, by the idea 
of obligation or duty resting upon the menace of a harm. 
No doubt, for many persons, the consciousness of the evil 
involved would destroy any pleasure which the criminal act 
might afford and is therefore sufficient to cause abstention from 
crime. But even these persons involuntarily think of the extra 
legal social reaction attendant upon the offense, namely, of 
the certainty of being distrusted and shunned by their honest 
neighbors; and this thought is continually strengthening 
their resolution to abstain from the acts in question. Such 
relative sanctions were perhaps the same which gave rise 

1 Herbert Spencer, “The Data of Ethics,” c. v1. 


242 CRIMINOLOGY [$3 


to the moral sense in our ancestors, whence it has come to us 
by inheritance. But although this moral sense is now innate 
in us, these sanctions are still present to arouse it and bring 
it to light. Without their stimulus, the moral sense would 
tend to weaken and even, in the course of time, might alto- 
gether disappear. 

And it may likewise be said that with instinctive repugnance 
to crime there is always associated the idea of the hurtful 
effects of arrest, prosecution, and punishment. The repre- 
sentation of these effects, therefore, even in the case of persons 
who are not degenerate, is still a force which contributes to 
the conservation of the moral sense. It is the moral sense 
which has created the law, but this in its turn sustains, rein- 
forces, and creates the moral sense. The motivation of punish- 
ment is not without its appreciable part in the slow, unnoticed, 
secular evolution in which ratiocination has become trans- 
formed into organic instinct. The repugnance inspired by 
words suggesting the punishment of felons, has much to do 
with the aversion which we feel for the felon, and undoubtedly 
increases our aversion to his crime. Thus it is in France and 
Italy, with the word “galley” (“galére,” “galera”’).1 The 
idea of the chain and the yellow cap makes the criminal more 
odious. 

The legislator, assuredly, has no power to stamp as infamous 
any act which public opinion views as praiseworthy or even 
as indifferent.2 But although debarred from opposing public 
morality, he may encourage its development, strengthen it, 

1 [For a period of about two centuries, France and the Italian States fol- 
lowed the practice of manning their State galleys, as far as possible, with 
convict rowers. Labor in the galleys was in fact the prevailing form of 
penal servitude. This method of punishment went out of use in France in 
1748 and in the Italian States somewhat later. The terms connected with 
it still persist, however, in the common speech, “galére” in French, and 
“galera” in Italian being colloquially equivalent to “travaux forcés” and 
“Javori forzati” (“forced labor” = penal servitude). — TRANSL.] 

* “Tt is for public opinion alone to say what actions are infamous. And 
this public opinion, while subject to the rectification of science and experience, 


is never to be violated or debased by the laws” (Filangieri, “Scienza della 
legislazione,” Book ITI, c. xxx1). 


§ 3] THE LAW OF ADAPTATION 243 


stay its enfeeblement, and prevent its disappearance. In 
short, the representation of evil to which the fact of punish- 
ment gives rise, reinforces the moral motive of conduct in 
the minds of honest men: it furnishes a new resisting force, a 
new sustaining power, for the moral sense. More than this, 
it presents, in many cases, the aspect of a real reward for 
persons of integrity, and for the following reasons: 

Honesty is never exempt from temptation. For the poor 
man bent under the burden of toil, there is time and again 
the attraction of some illicit gain, which would soften the rigors 
of his existence. The man who feels that he has been the 
victim of an outrage, experiences the temptation of seeking 
vengeance, the pleasure of the gods. But the moral sense 
overcomes the vicious impulse, not, however, without a 
struggle or without some regret. Now, it is clear that, having 
found that he himself possesses this strength of resistance, 
a man experiences a feeling akin to satisfaction, when he sees 
another who lacks this strength, suffer the pain and disgrace 
of trial and punishment. And this feeling affords him dis- 
tinct recompense for the exertion which he has undergone 
in conquering his own evil instincts. Such a sentiment, no 
doubt, is egoistic, but its social utility is indisputable. Proof 
of its existence appears in the almost universal satisfaction 
with which the news of some well-merited sentence of con- 
viction is always received. 

Since, in the majority of men, the moral sense has now 
become organic, the abolition of punishment would not pre- 
vent the honest man from remaining honest. But his efforts 
to subdue temptation would be more painful, his satisfac- 
tion after victory much less, than under the existing state of 
things. The idea of the utility of good conduct would grow 
faint and in the course of generations the moral sense would 
become gradually weakened. Enthusiasm for good would 
disappear, for what would be the advantage of unexceptionable 
conduct, if bad conduct were not to render the man any less 


happy? 


244 CRIMINOLOGY [$3 


It is thus that the harm befalling the offender, as the 
classic world uniformly believed, “ceteros meliores reddit.” 

Does then the adoption of our plan mean the loss of this 
beneficent effect of repression? Clearly not. For the pro- 
duction of this effect it is enough that the punishment be such 
as to reduce the offender to a state of social inferiority. Is 
not this very thing accomplished by elimination? Does it 
not necessarily produce suffering? And in enforced reparation, 
as proposed in the case of the less serious crimes, have we not 
a measure which represents a real punishment? Public 
morality, therefore, would suffer no impairment by the sub- 
stitution of our system of repression for that prevailing today. 

The Motive of Fear. — We come now to a still more direct 
motive of conduct, namely, the fear of punishment, operating 
upon those who are predisposed to crime. “Oderunt peccare 
mali formidine poenz,” is another maxim bequeathed to us 
by antiquity, but one which is not quite as exact as the 
preceding. Experimental science has shown us how far a pre- 
ventive effect may be expected from the menace of punish- 
ment. The limits thus set have already been indicated." 
In brief, our conclusion was that for the extreme criminals 
or murderers, the death penalty, inflicted with considerable 
frequency, is the only punishment with any power of terrify- 
ing; that professional offenders boldly face all the risks inci- 
ent to their trade, and in their case, imprisonment for life 
has at most the effect of discouraging a small number; that 
impulsive or neuropathic criminals do not think of the conse- 
quences of their crimes, unless, indeed, these consequences 
are serious and immediate; and finally, that in the case of 
endemic criminality alone, severe (although not cruel) punish- 
ments are an efficacious preventive measure. 

Some writers, however, viewing the matter quite pre- 
scinded from the evidence furnished by direct observation of 
the criminal, have essayed to establish a criterion of intimida- 
tion expressed in the following terms: 

1 Ante, Part II, c. m, § 2. 


§ 3] THE LAW OF ADAPTATION 245 


“For the harm threatened by the law to become a de- 
termining motive of conduct, it is necessary that it more than 
counterbalance the pleasure which is hoped from the crime ” 
(Feuerbach and Romagnosi). 

This is what is known as the theory of psychologic coaction. 
Its formula presupposes three conditions, namely: 

(1) That criminals are foresighted, calculating individuals, 
capable of weighing exactly the pleasure to be derived from 
the crime (something which is as yet unknown to them) 
against the harm which punishment will bring (this also being 
often an unknown quantity to the offender). 

(2) That the offender looks upon the punishment as a 
certain harm — as the inevitable consequence of the crime. 

(3) That the prevision of the remote, even though certain, 
harm is sufficient to dissuade the offender from procuring an 
immediate pleasure and gratifying a violent and instanta- 
neous desire. 

After all that has been said,.it would be merely repetition 
to point out that each and all of these three propositions are 
contradicted by experience. No doubt, fear is one of the most 
potent determining motives, but its effect cannot be calculated 
even approximately, save when we are called upon to deal 
with endemic criminals, or with the lesser offenders whose 
moral nature closely approaches that of normal man. 

Intimidation properly an Effect, not a Criterion of Punish- 
ment. — Any attempt to construct a penal system based upon 
intimidation would involve us in the most banal empiricism, 
for a scientific criterion is absolutely lacking. How would we 
set about determining whether five years’ imprisonment is 
sufficient to prevent a domestic theft (“vol domestique’”’)? ! 
— how are we to know whether the sentence should not be 
for ten years or whether even a five years’ sentence is not 
excessive? And moreover, why not retain corporal and 


1 [Vol domestique” = theft by a servant in the household of his master, 
or by a workman in the premises of his employer —a form of aggravated 
theft (“vol qualifié’’); see ante, p. 151, note 1. — Transt.] 


246 CRIMINOLOGY [$3 


degrading (“infamantes”’) punishments, the lash, the “car- 
can,” ! or even mutilation or the branding iron? Up to 
the beginning of the 1800s the tendency was to an undue 
severity of punishment; since then, the tendency has been 
just the opposite. Both have been harmful. In the 1700s, 
for example, domestic theft, in the kingdom of Naples, was a 
capital offense. But because of this the employer seldom or 
never brought charges against the offending servant, but was 
content with dismissing him from his service.2 The very 
cruelty of the punishment thus brought about the impunity 
of the-offender. On the other hand, undue severity of punish- 
ment may become the cause of serious crimes, as in France 
in the 1700s, when hanging was the punishment for robbery. 
“The robber,” says Filangieri, “almost always adds murder 
to his crime, simply because, without exposing him to a severer 
punishment, it puts out of the way a witness whose testimony 
would be the means of sending him to the gallows.” 

And yet, if intimidation alone is looked at in determining 
the question of punishment, experience of the inefficacy of mild 
measures makes it an easy step to draconism. For if the death 
penalty does not terrorize all offenders, it cannot be denied, 
at least, that it has a wider terrorizing effect than any other 
species of punishment. 

In the 1500s England was overrun with numbers of vaga- 
bonds. As Karl Marx has it, these were, in large part, 
the descendants of peasants who toward the close of the pre- 
ceding century had been wrongfully dispossessed of their hold- 
ings, as a result of feudal abuses or of laws in the interest 
of the mercantile classes.* In 1530, in the reign of Henry 


1 [The “carcan” served a purpose analogous to that of the pillory. It 
consisted of an iron collar which was clasped around the prisoner’s neck. 
A chain attached to the collar secured the offender to a post. This form of 
punishment was abolished in France by the law of 28 April, 1832. What 
seems to have been the same instrument was at one time in common use 
in Scotland under the name of “the jougs.”” — For an account of the jougs, 
see William Andrews, “Old-Time Punishments,” p. 108 (Hull, 1890). — 
TRANSL. |] 

* Filangiert, op. cit., Book III. * Karl Marz, “Das Kapital,” c. xxvu. 


§ 3] THE LAW OF ADAPTATION 247 


VIII, a statute was passed providing that for a first offense 
every able-bodied vagabond should be whipped at the cart- 
tail and compelled to return to labor in the place where he 
belonged. An amending act adopted five years later punished 
a second offense with the loss of “the upper part of the gristle 
of the right ear,” and a third by hanging. These acts were 
followed by the Statute of Vagabonds, enacted in 1547, in 
the reign of Edward VI. This provided that every able- 
bodied vagabond or beggar should be adjudged the slave, 
for a period of two years, of any one willing to buy him. 
Fourteen days’ absence from the master’s service was cause 
for adjudging the offender a slave for life. A second attempt 
to escape was made punishable by the gallows. By an act 
passed in 1572 (temp. Elizabeth), vagabonds were to be 
“ grievously whipped and burnt through the gristle of the right 
ear,” unless taken to service, by some trustworthy person, 
for one year. In case of a fresh offense on the part of one 
aged eighteen years or upwards, the penalty was hanging, 
unless he could secure like employment for a term of two 
years. For a third offense, there was no means of escaping 
the death penalty.1 According to Marx, who cites Holinshed 
as his authority, the number of hanged, during the reign of 
Henry VIII alone, is estimated at seventy-two thousand.” 
What does the theory of psychologic coaction say to meas- 
ures such as these? No doubt, idleness and vagrancy should 
be regarded as true social crimes in that they are a prolific 
source of all other crimes. No doubt, also, the habit of idle- 
ness is one most difficult to overcome. From the standpoint 
of strict logic, therefore, the sanguinary English laws of the 
1500s would be entirely justified. And yet our most intimate 
sentiments protest against taking the life of men who have been 
guilty of nothing more than idleness or mendicancy. Had 
these poor wretches gibbeted by Henry VIII and Elizabeth 


1 [The author’s account of these statutes has been slightly modified to 
accord with Stephen, “History of the Criminal Law of England,” III, pp. 
269-272, and Pike, “History of Crime in England,” II, pp. 69-73. — Transt.] 

2 Karl Marz, op. cit., c. XXvul. 


248 CRIMINOLOGY [$3 


been given a chance, they would have proved susceptible 
of adaptation. This is shown by the case of their successors 
who, under a more humane régime, were sent to the planta- 
tions of North America, as well as by that of the transported 
offenders who were the first Australian colonists. Intimidation 
has never worked aught but destruction, while adaptation 
has laid the foundation for rich and flourishing common- 
wealths. 

Respect for the moral sentiments, on the one hand, justifies 
violent reaction against crime, but, on the other, it forbids 
excess of this reaction. And excess is immediately present 
when there is applied to the offender a punishment adopted 
without regard to the danger to be apprehended from him, 
and which is neither a bar to his vicious impulses nor a 
remedy for his lack of sociability. It is always present when 
the punishment is measured solely by considerations of the 
danger to be apprehended from others who, it is feared, may 
be led to imitate the criminal, and when, consequently, the 
criminal and his punishment are used as instruments to ter- 
rorize these others. 

The conception of punishment as a natural reaction clearly 
defines its true intimidatory scope. Intimidation should be 
no more than a useful effect of which society avails itself, an 
effect which is attendant upon application of the total or par- 
tial exclusion required by the offender’s defect of adaptation. 
If intimidation is regarded as the chief end of punishment, 
society can put to death an offender who is still susceptible 
of adaptation, or can inflict upon him useless tortures, and 
thus violate his right not to undergo a harm greater than that 
which is the natural consequence of his wrongful act. Or 
again, the punishment will fail to attain its end, as occurred 
when, to terrorize the offender, he was flogged or put in the 
pillory, and then left free to resume his ordinary habits of 
life, or, indeed, as happens today, when habitual criminals 
are sentenced to a few months or years of imprisonment. 

In short, attempting to act upon the conscience of the dis- 


§ 3] THE LAW OF ADAPTATION 249 


honest individual, “formidine poene” simply means subject- 
ing him to sufferings more or less severe but almost always 
useless, without procuring his exclusion from the social life, 
or that form of the social life, for which he is unfit. But it is 
something wholly incompatible with the positivist notion of 
crime, with which the reader has already been made familiar, 
that the malefactor, once his chastisement has been undergone, 
may freely return to the social life. If crime is, as we believe, 
an act which reveals the lack or insufficiency of adaptation, 
this is a consideration upon which should turn the logical 
reaction of society. Punishments are not, therefore, to be 
chosen because of their power of intimidation. Intimidation 
will none the less be present as a necessary incident of the 
menace of elimination and its inherent harm. 

In the absolute form of elimination, namely, death, or those 
measures which in certain cases may take the place of death, 
that is to say, transportation and penitentiary imprisonment 
for life (“déportation et réclusion perpétuelle”’), this intimida- 
tory effect is obvious. Butit will also be produced by the 
partial and conditional forms of elimination, provided that in 
a given case they are exactly the means required for remedy- 
ing the particular defect in social aptitude. If this means be 
accurately determined, it will not fail to produce the inti- 
midatory effect desired. 

For the sake of illustration, suppose that in some small 
village a long standing family bitterness causes one inhabitant 
repeatedly to insult or threaten his neighbor in public, or 
suppose that in a like village a rejected suitor continually 
waylays and annoys the young woman to whose hand he has 
aspired, thus rendering his presence not only intolerable, 
but a danger to the public peace. According to the happy 
expression of Filangieri, such an offense may be termed a 
“local” one. For it is evident that the defect of adaptation 
is one which is relative to the circumstances of the social 
environment where the offender has conceived, in the first 
instance, his hatred, or in the second, his incurable love. 


250 CRIMINOLOGY [$3 


It may then be presumed that if we remove the individual 
from this locality where the motives for his anti-social conduct 
exist, the disappearance of these motives will render possible 
his adaptation in another place. Such, then, is society’s 
rational mode of reaction in cases of this description. And 
we believe that there can be no question of its intimidatory 
effect, for if the fear of local exile will not overcome the 
motives which impel to homicide or other serious offenses, 
it is at least sufficient to deter from insulting language (“in- 
jures”’) and other offenses of minor importance. 

It is not to be supposed that with this principle once 
established, there would no longer be any need for the rigor 
‘and severity of penitentiary discipline. This discipline is 
required for the maintenance of order, always a difficult 
task in a population of convicts. And in great part, its rigor 
and severity are due to the object sought to be attained, 
namely, the complete segregation of the convict. 

In our opinion, then, the conclusion is warranted that when 
the method of elimination is really that which the circum- 
stances require, that is to say, when it meets the true end of 
repression, intimidation by the nature of things will always 
result as a reflex effect, without any necessity on our part of 
making it a subject of especial concern. 

Here it may be objected that, according to our previously 
expressed view, there are many cases in which elimination 
would be a useless proceeding — cases in which every sort of 
corporal punishment even that of a brief term of imprison- 
ment should be done away with.! True, and we may add 
that a detention or imprisonment of a few days or weeks is a 
punishment no whit less absurd than the fustigation of by- 
gone days. But we have advocated, in such cases, a measure 
which has an intimidatory effect of its own. In fact, our plan 
of compulsory reparation for the moral and material damage 
caused by the offense will be a form of repression much more 
serious than the punishments for which it is substituted. 


1 See ante, § 1 of the present chapter. 


§ 4] THE LAW OF ADAPTATION 251 


Particularly will this be so if, as we propose, it will be enforced 
by means of so energetic a character (necessarily more ener- 
getic than those of the present procedure) that it will be pos- 
sible for no offender to evade his obligation. If we thus require 
the offender fully to indemnify the injured party, either by 
the immediate payment of a sum of money or by his com- 
pulsory labor until the sum is earned, as an indispensable 
condition of being set at liberty, is it not plain that this sort 
of coercion will have a much more sensible effect in the pre- 
vention of crime than any fixed term of imprisonment, 
imposing on the criminal no other obligation than that of 
eating the bread of idleness at the public expense? 


§ 4. Selection 


There remains to be examined one effect of elimination 
which is substantially peculiar to this measure, being encoun- 
tered only accidentally in other forms of punishment, — 
namely, selection. 

Selective Effect of Absolute Elimination. — From the brief 
summary which we have heretofore given, it is manifest that 
crime cannot escape the inflexible laws of psychologic heredity.! 
It follows, therefore, that the elimination of the elements 
least fit for the social life is calculated to bring about the moral 
betterment of the race, by reason of the diminishing number 
of individuals born with criminal propensities. 

The efforts of the individualist school of the 1700s to support 
the thesis that there is no psychologic continuity between 
parent and child, that neither the good nor the bad qualities 
of the father are transmitted to the son, have all been in vain. 
The fact is that if the individual does not precisely inherit 
the virtues and the vices of his parents and grandparents, 
he assuredly does inherit their virtuous or perverted instincts, 
their sentiments, their passions, and their character. Every- 
thing goes to show that psychologic heredity is but an aspect 


1 See ante, Part II, c. 1. 


952 CRIMINOLOGY [$4 


of physiologic heredity.!_ Especially is this so in the case of 
criminals. Psychologic and physiologic inheritance are here 
indisputable. As has been seen, the criminal instincts are 
frequently found in association with a structural difference, 
with a peculiar anthropologic conformation which, in the case 
of the extreme criminals, stamps its possessors as monstrosi- 
ties, sometimes atypic and often regressive. 

Antiquity relentlessly punished the son for the faults of 
the father. In our more civilized age, the aim should be only 
to prevent the procreation of individuals who in all likelihood 
would turn out to be vicious and depraved. Not to punish 
the children of criminals but to prevent their birth, to effect 
the permanent isolation of offenders — I now refer to the ab- 
normal authors of true crimes — and thus effect an artificial 
selection which will bring about a moral improvement of the 
race, — such is the duty which today rests upon society. 
Lombroso did not hesitate to ascribe the greater humanity of 
our times, as compared with that of past centuries, to the work 
of capital punishment in purifying the human race.2 The 
scaffold which annually put to death malefactors by the 
thousand is responsible for the fact that crime is not more 
prevalent today. Who can say what would have been the 
result if this selection had not come to pass, if these offenders 
had been left free to multiply their kind, and if we had now 
among us the innumerable descendants of all the thieves and 
murderers of centuries gone by? 

Today the race of civilized man is more benign, less swayed 
by passion, better able to resist brutal instincts, than it has 
ever been in the past. Progress in this respect has been 
in great part owed to selection. Why, then, should this 
progress be interrupted? Why should we not continue this 
secular work of purification? Every pause in the forward 
movement is a step backward. Let us then see to it lest we 
incur the righteous blame of future generations for not 


1 Ribot, “L’hérédité psychologique” (Paris, F. Alcan, 1882). 
* Lombroso, L’incremento del delitto in Italia, p. 30 (Turin, 1879). 


§ 4] THE LAW OF ADAPTATION 253 


stamping under foot the seed from which otherwise will 
have sprung a noxious crop to devastate their fields. 

But, it may be asked, is there not even now a natural 
selection continually taking place in every civilized environ- 
ment, a selection which is effected without any interference on 
the part of the social power? “The criminal who is such by 
reason of the vices of his physical constitution represents in 
most cases a product of degeneration or, at least, the beginning 
of a dangerous deviation from the normal type. In both cases 
nature, looking to the perpetuation of the species, either elim- 
inates the defective individual at once, or else causes his pos- 
terity soon to die out.”! This, however, is true only of a few 
varieties of criminals — of those who present a marked bio- 
pathologic character, such as epileptics, lunatics, and neuro- 
paths. By far the greater proportion of offenders, notwith- 
standing their plainly revealed characteristics of degeneration 
and moral inferiority, are in no way deficient as regards their 
fitness for the physical life. Such are the individuals whose 
physical abnormalities are limited to the regressive char- 
acteristics which approximate them to the inferior races of 
mankind, or those, again, who exhibit atypic but not patho- 
logic characteristics. These persons may be in perfect health, 
in better health, perhaps, than civilized man, in whom the 
moral development has often taken place at the expense of the 
physical. From a purely physical standpoint the savage is 
the superior of civilized man, excelling him in muscular 
strength and keenness of the senses.? Non-diseased criminals 
are therefore capable of reproducing “ad infinitum,” like 
normal men. In fact, their prolificacy is ordinarily greater 

1 Venturi, “La peine de mort” (Actes du Congrés d’Anthropologie 
criminelle, p. 312, — Rome, 1887). 

2 “Tntellectual development is conducive to neuropathic conditions, 
and, resultingly, to the degeneration and extinction of the race” (Jacoby, 
“Etudes sur la sélection,” Preface to 2d ed., — Paris, F. Alcan, 1904). Al- 
brecht has maintained that, so far as comparative anatomy is concerned, 
man, as a race, is morphologically inferior to the simian, and civilized man 


to the savage. See Actes du Congrés d’Anthropologie criminelle, pp. 105, 111 
(Rome, 1887). 


254 CRIMINOLOGY [$ 4 


than that of normal men, as is proved by the genea- 
logical data which we have concerning certain criminal 
families. 

Moreover, “society, in taking the life of the offender, aids 
and accelerates nature’s work of subordinating all things to 
the social interest. The necessities of the social life and the 
influence of the social environment have altered, for the mem- 
bers of society, the natural conditions of the struggle for life; 
the forces of nature have been replaced by those of the social 
conventions. It would be dangerous, indeed, for society 
to shrink from ridding itself, at least as far as possible, from 
the elements which constitute a source of infection.” ! 

Selective Effect of Relative Elimination. — But, as we know, 
the death penalty is not the only method of elimination 
capable of furthering natural selection. The enforced emi- 
gration of vagabonds from Great Britain to her colonies has 
not been without its influence in the purification of her popu- 
lation, among which today the percentage of crime, at least 
in its most serious forms, is very much lower than in the coun- 
tries of Central and Southern Europe. As we already have 
had occasion to notice, the number of murders and homicides 
in the United Kingdom has been undergoing, especially 
in the second half of the 1800s, such a steady decrease, that 
one would be justified in predicting the total disappearance of 
these crimes from British soil at an early day. Nevertheless, 
the British government still retains the death penalty, and 
wisely so. If the hangings under Henry VIII and Elizabeth 
went far in accomplishing a selection, the transportations of 
the 1700s and the first half of the 1800s humanely continued 
the work. The problem consists in this: to distinguish the 
typical criminals, men insusceptible of any new adaptation, 
from such offenders as present the possibility of a new adapta- 
tion. In the case of the former, selection will be effected by 
their absolute elimination. In the case of the latter, relative 
elimination will accomplish a relative selection, namely, a 

1 Venturi, in the paper above cited. 


§ 5] THE LAW OF ADAPTATION 255 


selection in relation to the environment from which they have 
been separated. 


§ 5. The Correctionalist Theory 


We have seen that the reaction of society against crime 
ought to assume one of three forms, according to the degree 
of danger arising from the psychic anomaly of the criminal, 
or, to put it in another way, according as his perversity is 
more or less ingrained in his organism and likely to manifest 
itself anew. These three forms are (1) complete elimination, 
by which the individual is deprived of all intercourse with 
society, (2) partial elimination, consisting in his separation 
from the particular environment for which he is unfit, and 
(3) enforced reparation of the injury caused by his offense. 

The Theory in General. — But there would be no room for 
such proposals, if it were to be shown that, by an appropriate 
method of education, evil instincts could be overcome and the 
criminal transformed into an honest man. There are certain 
psychologists who believe in the possibility of modifying char- 
acter by education, using the word in its true sense. Save 
for some rare cases of exceptionally refractory natures, they 
maintain that all men, even those who seem to be most im- 
bruted, most destitute of good sentiments, are susceptible of 
normal reform; and that consequently every possible effort 
should be made to save them. This view has given rise to the » 
correctionalist school, which, in combating the system of 
physical and degrading punishments (“peines afflictives et 
infamantes”’) | and treating the reformation of the offender 
as the true end of punishment, has had much influence upon 
legislation and legal thought. If the postulate of the crim- 
inal’s corrigibility can be accepted, this theory ought to com- 
mand adherence, even from the standpoint of social defense. 
For what better guaranty against the repetition of the crime 
could be desired than the removal of the criminal’s perver- 


1 [See ante, p. 59, note 1. — TRanst.] 


256 CRIMINOLOGY [$5 


sity? What need, then, to destroy the criminal himself or to 
surround him with physical trammels? 

But, at the outset, we encounter this difficulty: Ought the 
moral reform to exclude the physical suffering and the shame 
which accompany punishment? If so, is the penal sanction 
to consist, not in the menace of an evil, but in the promise of a 
good? The effect of such a proceeding, it is evident, would 
be completely to overturn the motives of conduct, since the 
worst sort of conduct would be rewarded by especial care on 
the part of the State; untouched by any agency of physical 
suffering, the criminal would receive as the sole consequence 
of his crime, the privilege of gratuitous instruction. More- 
over, the situation presents a practical impossibility. Without 
physical constraint, how is the offender to be made amenable to 
discipline? But just as soon as the element of constraint 
appears, we have the prison, the penitentiary. The mere 
deprivation of liberty, however benign the administration of 
the place of confinement, is undeniably punishment. In 
effect, therefore, what the correctionalist school proposes 
simply comes to this, that the sole office of imprisonment 
should be that of rendering possible the moral reformation 
of the prisoner. 

Having reached this point, the first thing, it seems to me, 
which the correctionalists should consider, is whether criminals 
in general, or, at least, any classes of criminals, are susceptible 
of reformation; and the next, by what means this reformation 
is to be accomplished. Instead of thus examining the ques- 
tion, they have established the correctional prison with its 
compulsory labor, and all has been said. The only case in 
which the problem has been given intelligent study is in that 
of children and adolescents. And if such studies have yielded 
some good results, it is merely for the reason that in this case 
alone is there any possibility of attaining the desired end. 

Limited Efficacy of Education; Impossibility of Distinguish- 
ing its Effect from that of Heredity. —In fact, it seems clear 
that education is an influence which acts only upon infancy 


§ 5] THE LAW OF ADAPTATION 257 


and early youth, an influence which, like heredity and tradi- 
tion, contributes to the formation of character. Once fixed, 
the character, like the physiognomy, undergoes no further 
change during life. And even in the period of early childhood, 
it is doubtful whether education can create a wanting moral 
instinct. Still the word “education” ought not to be taken in 
the pedagogic sense. It signifies rather an aggregate of exter- 
nal influences, a whole series of scenes which the child sees 
continually passing before it, and which impress upon him 
moral habitudes in teaching him the lesson which he thus 
learns by experience and almost unconsciously, namely, what 
conduct is to be followed under different circumstances. 
Family examples have a far greater influence upon him than 
any pedagogic instruction. But in giving to the word “edu- 
cation” this wide meaning, it is impossible to be sure of its 
effect, or, at least, in anywise to measure this effect.! 

Almost all children during the first years of their life seem 
destitute of moral sense. Their cruelty to animals is well 
known, as is also their propensity to seize what belongs to 
others. They are thoroughly egoistic, and in seeking to satisfy 
their desires, they are not in the slightest degree concerned 
with what they make others suffer. In most cases all this 
changes with the approach of adolescence. But can it be said 
that this psychologic transformation is the effect of education? 
Are we not rather to see in it a simple phenomenon of organic 
evolution, similar to the embryogenic evolution by which 
the foetus passes through the different stages of animal life, 
beginning with the most rudimentary and ending with that 
of man? It has been said that the evolution of the individual 
is an epitome of that of the species.2 Thus in the psychic 
organism the instincts which primarily appeared must have 


1 “Tn order that education may exert its full influence, it is necessary that 
the subject be free from any defect of conformation, any pathologic state, any 
hereditary condition which, from having lasted throughout a long series of 
generations, has resulted in the absolute callousness of certain nerve-centres ” 
(Paper by Sciamanna, in the Actes du ler Congrés d’ Anthropologie criminelle, 
p. 201, — Rome, 1887). 

2 See Haeckel, “‘ Anthropogénie,” p. 48 (Paris, 1877). 


258 CRIMINOLOGY [$5 


been those of the animal, next must have come the ultra- 
egoistic sentiments, then in succession the ego-altruistic senti- 
ments as acquired first by the race, secondly by the family, 
and lastly by the parents of the child. The juxtapositions of 
instincts and sentiments thus arising would be due not to 
education or to the influence of the immediate environment, 
but solely to heredity. ‘The conscience,” says Espinas, 
“grows in the same manner as the organism and parallel to 
it. It contains aptitudes, predetermined forms of thought 
and action, which are direct emanations of anterior con- 
sciences, momentarily overshadowed, it is true, in the ob- 
scurity of organic transmission, but coming again to light 
with unequivocal characteristics of resemblance, very soon to 
be confirmed, and in an increasing degree, by example and 
education. So far as conscience is concerned, a generation is 
really a phenomenon of reproduction by fission.” ! 

This hypothesis is not an improbable one. To prove it with 
exactness is, however, out of the question. It could not be 
done without distinguishing the respective parts played by 
heredity and education in the moral development of the child, 
And how is this distinction to be arrived at? These two in- 
fluences ordinarily act in the same direction, because they are 
almost always derived from the same persons, namely, the 
parents. Domestic education is merely the continuation of 
heredity. That which has not been organically transmitted 
will be transmitted, and in an equally unconscious manner, 
by the force of examples. It is therefore impossible to deter- 
mine how far the influence of one would have extended with- 
out the aid of the other. 

So, on the one hand, we cannot dispute Darwin when he 
declares that if an equal number of Irish and Scots were to 
colonize a country, the former in the course of time would be 
ten times as numerous as the latter, but that the Scots, on 
account of their hereditary qualities, would hold the reins of 
government and industry. But neither have we any right, 


1 A, Espinas, “Les sociétés animales,” Conclusion, § 2. 


§ 5] THE LAW OF ADAPTATION 259 


on the other hand, to suppose that Fouillée is mistaken in 
saying: “Substitute the Irish children for the Scottish with- 
out the knowledge of their parents; bring up the Irish children 
like the Scottish, and perhaps, strange as it may seem, you 
will have the same result.”’! But this second experiment has 
never been tried, and in all likelihood never will be. No 
doubt, there are thousands of children brought up by persons 
other than their parents, but in such cases the parents are 
generally unknown. Finally, there always remain to be 
reckoned with the still obscure and undeterminable phe- 
nomena of atavism. Everything thus tends to render the 
problem insoluble. 

It frequently occurs that the paternal instincts are stifled 
or attenuated by maternal examples. Sometimes, again, the 
converse is true. Still, this proves nothing as to the efficacy 
of education, for it may just as well be said that the effect 
is due simply to the ultimate superiority of one of the two 
heredities. 

What may be said, however, is that when the hereditary in- 
fluence is not too strong, education has a very probable 
effect upon infancy and early youth, — education, that is to 
say, especially in the sense of examples set the child by the 
family and the persons by whom he is immediately sur- 
rounded. But it is an influence which grows weaker and 
weaker as the child advances in years. While it may atten- 
uate, it can never entirely eradicate the perverse instincts. 
Whatever its action, these would always remain latent in the 
psychic organism. This explains why, in the case of certain 
children, it has never been possible to correct the perversity, 
perhaps atavistic, manifested in their early years, notwith- 
standing the exemplary conduct of their parents and the per- 
sons with whom they have been brought in contact, and in 
spite of the greatest pains taken in their upbringing.? On 


1 Fouillée, “La philanthropie scientifique au point de vue du Darwinisme ” 
(Revue des Deux Mondes, 15 September, 1882). 

2 Bernard Perez, who is not in general open to the charge of pessimism, 
lends the weight of his authority to the view that there are children whose 


260 CRIMINOLOGY [$5 


the opposite, it seems certain that the deleterious influence 
of a bad education may completely obliterate the trans- 
mitted moral sense and set in its place the most evil instincts. 
From which it results that a good character artificially 
created would always be subject to lapses, while a bad char- 
acter similarly created would be unalterable. ‘This is easily 
accounted for by the theory of evolution. The evil germs or 
anti-social instincts which correspond to the primitive age 
of mankind, are the ones most deeply rooted in the organism, 
precisely because they are the oldest in the history of the race. 
They are consequently stronger than the instincts which 
have been superposed upon them by evolution. This is why 
the savage instincts are never entirely stifled, but, on the 
contrary, as soon as the environment and the circumstances 
of life become favorable to their expansion, burst forth with 
violence. As Carlyle has said, “Civilization is only a crust 
beneath which the savage nature of man burns with an infernal 
fire.” 


natures are wholly insusceptible of education. ‘Goodwill and evenrvirtue 
on the part of the parents do not always guarantee the success of their chil- 
dren’s education. The children of couples who are sound in mind and body, 
of no disparity in point of age, and living under good hygienic conditions, are 
not always moral. In such cases we must reckon with the grievous recur- 
rences of heredity. As for people who lead irregular lives, who are addicted 
to excesses, intemperance, and vicious habits, whether congenitally so or not, 
they are infallibly laying the foundations of a race in which vice, insanity, 
and crime will be the rule. It is undoubtedly true that violent and dangerous 
tendencies are exhibited by a considerable number of young children, but 
in many cases they are so pronounced, although sometimes intermittent, 
that we are forced to see in their possessors the unfortunate victims of the 
fatal laws of heredity and degeneration” (“L’éducation morale dés le ber- 
ceau,” pp. 109, 110, — Paris, Felix Alcan, 1888). 

For Magnan there is no natural predisposition to crime in the normal indi- 
vidual. He admits, however, the fact of degeneracy due to nervous or vesanic 
heredity or to the alcoholism of the ascendants (Paper read before the second 
Congress of Criminal Anthropology). 

Taverni, in his paper read at the same Congress, admits the existence of a 
natural irremediable deficiency, rendering the subject insusceptible of educa- 
tion, whatever be the pedagogic method employed, which insusceptibility 
constitutes the natural predisposition to crime. 

See, upon the same question the interesting remarks of Molet and Herbette 
in the proceedings of this Congress. Mme. Pigeon’s protest that there are no 
children who are insusceptible of education seems to be inspired by womanly 
tenderness of heart rather than based upon experience. 


§ 5] THE LAW OF ADAPTATION 261 


If the influence of education upon the moral sense is thus 
open to question even when exerted upon infancy, what can 
we expect it to accomplish in later years? 

Fizxity of the Character Type. — Sergi represents the moral 
character as formed of superposed layers which may cover and 
entirely conceal the congenital character. The social environ- 
ment, the effect of examples, and even direct teaching may 
operate to produce a new stratum not only during childhood 
but also in later life.1_ In my opinion, this theory is admissible 
only upon the assumption that the more recent strata never 
produce alteration of the type of character already formed. 
The psychic organism, unquestionably, has its period of for- 
mation and development just as the physical organism. 
Like the physiognomy, the character takes form at a very 
early age. It may become more flexible or more rigid, its 
angles may become subdued or accentuated, in ordinary life 
it may be dissimulated; but how can it lose its type? Now 
the man who is destitute of the elementary moral sentiments 
has a special type of character. It is organically defective 
from heredity, atavism, or a pathologic condition. Is it reason- 
able to suppose that this congenital defect can be repaired by 
external influences? The artificial production of the racial 
moral sense of which, by exception, the individual is devoid, 
would be in effect a creation “ex nihilo.” 

Such a result is difficult to conceive under any circumstances. 
When the subject is past the years of childhood it appears 
absolutely impossible. We are not to be understood as deny- 
ing the power of education. No one can doubt the prodigies 
which it accomplishes, when its task is that of perfecting 
character, of refining the already existing sentiments, in a 
word, of weaving the threads into the completed fabric. But 
what we cannot concede to it is the power of making something 
out of nothing. 

Views of Despine. —In this regard, it seems to me that 
Despine has fallen into a singular contradiction. We are 


1 G. Sergi, “La stratificazione del carattere e la delinquenza”’ (Milan, 1888). 


262 CRIMINOLOGY [$5 


indebted to this author for a multitude of observations con- 
firming the existence of criminal anomaly. Moreover, he 
has formulated a theory closely approaching our own, as to 
the absence of the moral sense, not only in murderers, but 
also in the extreme, violent criminals.! So too, he has de- 
clared that “education, even in the best sense of the word, 
cannot create faculties; it can only cultivate those already 
existing, at least in germ”; that “the intellectual faculties, 
alone, have no power to produce the instinctive cognitions, 
these being derived from the moral faculties’’; that “it is easy 
to recognize in the moral faculties the origin of the motives 
of action which ought to present themselves to the mind of 
man under the varying circumstances of life”; * and finally, 
that “no amount of reasoning or intellectual exertion will 
suffice to establish the existence of the sentiment of duty any 
more than it will that of the affections, fear, hope, or the 
sense of the beautiful.”’* 

And yet, holding these views, he proposes for criminals a 
palliative and curative moral treatment, the leading features 
of which he summarizes as follows: All communication 
between persons morally imperfect is to be prevented. Such 
persons, however, are not to be left in solitude, for their own 
consciences afford no means of reformation. It is to be ar- 
ranged that they shall be constantly in contact with moral 
persons, fitted to keep them under observation and to study 
their instinctive nature, persons who are capable of impress- 
ing this nature and giving to their thoughts a right direction 
by inspiring them with ideas of order and imbuing them with 
the liking for work and the habit of working. It is, then, 
for the State to undertake this unremitting and assiduous 
care of the prisoners, to keep watch over their progress in 
the manner of a schoolmaster, and to endeavor by examples, 
experiments, and direct teaching, to mitigate their char- 


1 Despine, “De la folie au point de vue philosophique,”’ etc., Part I, p. 39 
(Paris, 1875). 
2 Ibid., p. 40. 3 Tbid., p. 46. 


Sb) THE LAW OF ADAPTATION 263 


acters and render them affectionate, honest, charitable, and 
zealous. 

In the first place, the idea of applying such a moral therapy 
to many thousands of criminals is plainly Utopian. It would 
require that to every inmate there be assigned, so to speak, 
a guardian angel. Such an employment would demand per- 
sons endowed with the noblest and rarest qualities of man, 
patience, vigilance, and just severity. To an intimate knowl- 
edge of human nature, they would need to unite education and 
devotion. Where are we to find a sufficient number of these 
soul-physicians? And what of the expense of such an under- 
taking? But, assuming, for the moment, that the practical 
difficulties of the system are not insurmountable, what would 
be its effect? 

The offender, separated from his former surroundings and 
removed from the continual temptations to which he was 
there exposed, would undoubtedly no longer think of commit- 
ting crime, inasmuch as both its occasion and _ possibility 
would have become non-existent. But in spite of all teaching, 
the criminal germ, in a latent state, would continue to reside 
in his being, ready to make itself manifest with the return 
of his former environmental conditions. Therefore, even if 
the reformation were not feigned, it could never be more than 
apparent. 

Impossibility of artificially creating Moral Instincts. — 
The idea of reforming criminals by means of an experimental 
pedagogy can no longer be taken seriously. For, if it be true 
that the moral instincts of mankind are the result of countless 
experiences of utility undergone by our ancestors throughout 
thousands of centuries, how can we suppose it possible for 
these experiences to be artificially reproduced in as short a 
space of time as the life of a human being? How, then, are 
we to believe that the man whose instinct has not inherited 
the product of these experiences of past generations, can be 
artificially raised to the moral level of other men? And for 
that matter, how can such experiences be possibly undergone 


264 CRIMINOLOGY [$5 


by a prisoner deprived of all contact with the outside 
world? 

The uselessness of trying to effect a moral cure in any such 
direct fashion as that involved in the Utopian plan of Despine, 
has at length come to be recognized. The belief, however, 
still persists that this moral cure can be indirectly effected 
by means of a proper penitentiary regimen. Solitude, silence, 
labor, and instruction, it is maintained, will lead to repentance 
and good resolutions and tend tothe reformation of theconvict. 

Respecting solitude, it is to be observed, in the eloquent 
words of Mittelstadt, that “what the wretched and unhappy, 
the outcast and the fallen are in need of, is not separation 
from society, but rather the love and contact of their fellow- 
beings.” And as for labor, to quote the same author, “all 
that our prison humanitarians have left to them is the hopeless 
dilemma of coming to an understanding as to the meaning of 
the formula: ‘Educative labor for prisoners.’ Would they 
employ labor as a useful corrective of habits of life? If so, 
they must remove all coercion and substitute freedom for 
imprisonment. Or would they retain coercion? Then they 
are simply dispensing punishment as before, and reformation, 
as an object, vanishes.” ! 

But the correctionalists answer that with labor there must 
be combined mental and moral education: that for this pur- 
pose we must have schools where the ordinarily rude and 
ignorant convict may acquire the knowledge which he lacks, 
of the true and the good. Experience, has shown, however, 
that in general the school is almost entirely destitute of 
influence upon individual morality. Take an adult criminal 
devoid of a part of the moral sense, namely, the instinct of 


1 Mittelstadt, “Gegen die Freiheitstrafen” (1880). On this subject, 
Spencer says: “It is to no purpose that you make him (the prisoner) work by 
external coercion; for when he is again free, and the coercion absent, he will 
be what he was before. The coercion must be an internal one, which he shall 
carry with him out of prison” (“Prison-ethics””). And Lord Stanley, speaking 
in Parliament, expressed the same idea when he exclaimed: “The reformation 
of man can never become a mechanical process.” 


§ 5] THE LAW OF ADAPTATION 265 


pity. Try to inculcate this instinct in him by teaching, that 
is to say, by repeating over and over that one of the duties of 
man is to be sympathetic; that morality forbids us to harm 
our fellows; and the like. What will be the result? The sub- 
ject, we may well suppose, will have thus acquired, if indeed 
he did not already have it, a criterion for distinguishing and 
recognizing what is good conduct according to the principles 
of morality. In a word, he will have acquired ideas but not 
sentiments. What will be the effect of these ideas upon his con- 
duct? If goodness in man springs not from reflection but 
from instinct, and if it is precisely instinct which is lacking in 
the case put, how can any reception of ideas supply his or- 
ganic deficiency? He will know the good, but will do the evil, 
when this accords with his pleasure. 
“Video meliora, proboque; 

Deteriora sequor.” 

It would be idle to reiterate to him that the social interest 
is far more important than the interest of the individual; 
that in the long run the latter identifies itself with the former; 
that, as members of society, it is our duty to sacrifice our egoism 
in order that others may do likewise toward us. It would be 
equally fruitless to use the argument of religion, to speak to 
him of the eternal happiness in store for the just man and the 
eternal damnation which awaits the wicked. What he is told 
in either case, simply comes to this: “If you do a certain act, 
a certain harm will befall you. To avoid this harm, therefore, 
you must refrain from the act.” 

Unfortunately, the offender prefers to satisfy the passion 
or desire of the moment rather than sacrifice this passion or 
desire to the vague hope of a future and far-off benefit. The 
argument, then, is without effect upon him. Ability to see 
clearly what others regard as a predominant interest will not 
prevent him from offending anew. What is necessary is that 
he experience the same repugnance to crime as other men, 
because, in the ultimate analysis, it is the character of the 
‘individual and his general manner of feeling which explain 


266 CRIMINOLOGY [$5 


every human action.! Instinct can never be created by ratio- 
cination.2. It cannot be other than congenital, or else uncon- 
sciously acquired through the effect of the physical or social 
environment. 

We are thus brought back to our two principal agencies: 
heredity and environment. Education, in so far as it is that 
of the school-room, is of little or no effect if the environment 
is unchanged, that is to say, if, upon the termination of his 
punishment, the criminal is allowed to return to his former 
surroundings. The story is well known of the negro children 
who in infancy were taken to Europe and, after having been 
there brought up and educated, were sent back to civilize 
their tribesmen. No sooner did they find themselves among 
the latter than they forgot all that they had learned, their 
grammar as well as their habits of life, and throwing away their 
civilized garments, they fled into the forest, there to become 
savages like their fathers, whom, moreover, they had never 
known.’ This is exactly how the correctionalist principle may 
be expected to result, if the trials of it, which have already 
been made, viz., in the cellular system, the system in use at 
Auburn, the Irish system, etc., are any criterion. 

The Elmira System.—In the Elmira Reformatory,* a 
system of coercion has been adopted which aims at improving 
the physical and mental structure of the inmates, with a view 
to creating in them new habits of life and thought. The means 
employed are hygienic conditions of living and diet, baths, 
massage, gymnastic exercises, military drill, and instruction 
both academic and in the industrial trades. Strict rules 
of deportment and the sternest sort of discipline prevail. 
Inmates whose future good conduct seems assured, may be 

1 See Ribot, ‘‘Les maladies de la volonté,” (Paris, F. Alean, 1883). 

2 Despine, “De la folie,” etc., p. 39. 

8 “Tn Brazil, not long ago, a doctor of medicine of the University of Bahia 
abandoned civilized life and returned to wander naked in his native forests. 
Instances of the same kind have been noted in Australia and New Zealand ” 
(Victor Jeanvrot, “‘La question de la criminalité,” Revue de la réforme judi- 


ciaire, Paris, 15 July, 1889). 
4 Elmira, N. Y., U.S. A. 


§ 5] THE LAW OF ADAPTATION 267 


released on parole after one year’s detention. They are then 
kept under surveillance for a further period of six months. 
If their conduct continues to be good, they are at the end of 
this period granted their absolute release, whatever be the 
maximum term of their sentence. It is to be noted that there 
are no recidivists among the inmates of this institution. 
These are mostly youths, their average age being twenty-one 
years. Furthermore, they are here under a regimen which 
keeps them continually active, and, upon being released, places 
of employment are found for them. Yet in spite of these 
facts, about 20% of them commit a second offense within the 
six months following their release on parole. While the rest 
are lost to sight, it is asserted that they are no longer heard 
of as criminals. But the question of time is not mentioned, 
nor are there any proofs adduced in support of the statement. 
Moreover, what possibility is there of extending this system 
to habitual offenders, to hardened criminals? Then again, 
the administration of such an institution could only be in- 
trusted to persons with extraordinary qualifications, such 
qualifications in short as are possessed by Mr. Brockway, 
the first director of the Elmira Reformatory. “The head of © 
an educational institution of this sort,’ writes Charles Dud- 
ley Warner, an enthusiastic admirer of the school, “must 
be a man of high character. . . . He must be an educated 
man, a man of executive ability and capable of enforcing 
discipline. His subordinates must be like him in degree. 
They must be pervaded with the spirit of the system.” 
Under such conditions — which, it is needless to say, are 
extremely difficult of fulfillment — similar institutions may 
yield good results, but always upon a small scale as at EI- 
mira, where, as has been seen, the treatment in question is 
confined to youthful first-offenders. 

Statistics of Recidivism a Refutation of the Correctionalist 
Theory.— The fact is indisputable that in all countries 


1 “The Elmira System”: Paper read before Am. Soc. Science Ass’n., 
9 September, 1894 ([Am.] Journal of Social Science, No. 32, pp. 65, 66). 


268 CRIMINOLOGY [$5 


recidivism tends to increase according as punishments are 
made shorter and less severe. In France the proportion of 
misdemeanors (“délits’’) which were not first offenses rose 
from 21% in 1851 to 44% in 1882, that of felonies (“crimes’’) 
similarly representing cases of recidivism, from 33% to 52%, 
during the same period. “Recidivism,” to quote from a re- 
port of the Minister of Justice, “continues its march of in- 
vasion. . . . In ten years the number of criminals who have 
undergone more than one conviction, has increased by 39%, —- 
almost two-fifths.” ! The average annual number of recidi- 
vists reached the figure of 104,070, being almost one-half of 
the total number of convictions, in the period from 1891 
to 1895. In the following four-year period, however, it began 
to show a decrease, quite evidently as the result of the new 
laws relating to recidivism and conditional sentences. In 
Germany, between 1889 and 1899, the number of recidivists 
increased by more than 100%, — specifically, from 88,270 
to 187,136. Italy from 1876 to 1895 suffered under a steady 
growth of habitual offenses. In the latter year, of the 45,579 
recidivists in custody, 3,000 had undergone upward of six 
convictions. 

In all this, we have a practical demonstration of the futility 
of the correctionalist theory, or, at least, of its applications. 
The result could not be otherwise, in view of the obvious 
contradiction which its principles involve. While, on the one 
hand, it maintains that the aim of all punishment is the ref- 
ormation of the offender, on the other, it establishes a fixed 
measure of punishment for every offense, that is to say, de- 
tention in a State institution for a certain number of months 
or years — a proceeding which, as Willert has said, “is much 
as if a physician, in prescribing hospital treatment for a pa- 
tient, were to indicate the exact day on which he must be 
discharged, irrespective of his state of health.” ? In institu- 


1 “ Journal officiel,” 13 March, 1884. 
2 Willert, “Das Postulat der Abschaffung des Strafmasses mit der dagegen 
erhobenen Einwendung.” 


§ 5] THE LAW OF ADAPTATION 269 


tions for dependent children and for adolescents who have 
begun to exhibit evil propensities, we find the only salvage 
from the wreck of this theory. In the case of adults, all that 
we can do is to try to make them acquire such a habit of life 
as they will desire permanently to continue, because more 
useful to them than any other species of activity, in the new 
social environment to which they will have been transported. 
Only in this way will the offender, who is not entirely degen- 
erate, cease to be harmful to society. Such a result, however, 
can be realized in no other manner than by transportation 
(“déportation”’), or by internment in agricultural colonies to be 
established in the more sparsely settled districts of the mother 
country. It is an indispensable condition, moreover, that this 
sort of exile shall be for life or at least for a term not fixed 
in advance. The use of indefinite sentences would permit 
release in those rare cases where the reformation of the offender 
through labor could be regarded as an accomplished fact.! 
Such cases do occur; but they are exceptional. In the 
ordinary case it would be out of the question to suppose that 
the offender, however long his absence, could return to the 
environment which for him is a miniature fatherland, without 
being affected by the influences which had impelled him to 
crime. 

1 The idea of punishment without fixed duration was advanced by me 
in 1880 (see my “Criterio positivo della penalita,’”” — Naples, Vallardi), 
and by Kraepelin, the same year, in his brochure, “Die Abschaffung des 
Strafmasses”’ (Leipzig, 1880). Liszt lent it support in his lectures at the 
University of Marburg in 1882. More recently, a number of other authors 
have taken it up; and it has become the subject of legislative adoption, as 
for example in the Argentine Penal Code of 1903. An excellent commentary 


on this code exists in “La ley penal Argentina, Estudio critico,” by Rodolfo 
Moreno (La Plata, 1903). 


CHAPTER II 


Tue Existrinc THEORIES OF CRIMINAL LAW 


General Considerations. 

Moral Responsibility. 

The Same: Insanity. 

The Same: Drunkenness. 

The Same: Hypnosis. 

The Same: Infancy. 

Proportionality between Crime and Punishment. 
Criminal Attempt. F 

Criminal Participation. 

Plurality of Offenses. 

Recidivism. 

Extenuating Circumstances. 
Punishments of the Present System.! 


COP 60? 00 00? COR COR COP COR 60? CO? CO? COR COR 
PME SL ANS Se we 


eal eal alll peal 


§ 1. General Considerations 


THE simplicity and self-evidence of the principles set forth 
in the preceding chapter, are such, I am confident, as to 
commend them to the intelligent reader, regardless of his ac- 
quaintance with the natural or social sciences. Indeed, it 
may be that a perusal of the chapter in question will move 
him to declare that it contains nothing new. For it not seldom 
happens that the mere enouncement of an idea carries per- 
suasion of its truth. The reader is convinced that the idea 
has always been his, although he has never clothed it in words, 
or believes, at least, that had he studied the subject in hand, 
he could have come to no other conclusion. 

And yet the doctrines of the prevailing criminal law are 
essentially different from everything which we have advanced. 
It therefore becomes important to explain wherein this differ- 


1 [§§ 1 and 2 = §I of original; §§ 3, 4, 5, and6 = § II; §§ 7 and8 = III 
and IV respectively; §§ 9, 10, 11 and 12 = § V; and §13 = § VI. — Transt.] 


§ 1] EXISTING THEORIES OF CRIMINAL LAW 271 


ence consists, so that such of our readers as are unfamiliar 
with legal science, may better appreciate the significance of 
what we have been advocating. For this purpose, we shall 
present a brief analysis of the generally accepted theories of 
the modern criminal law, comparing as we proceed, its vari- 
ous rules with those which are the logical corollaries of our 
principles. 

It has been explained in a former place,! that the jurists 
do not, like us, regard the criminal as an abnormal being, in 
varying degrees insusceptible of adaptation. In their eyes, 
he is merely a man who has disobeyed a law of the State and 
deserves the punishment which constitutes the sanction of 
that law. For each of the two principal schools which have 
hitherto dominated the field of criminal law, punishment, it 
is true, has a different signification. The idealist school looks 
upon it as the moral compensation for the harm occasioned 
by the crime. The juristic school properly so called (which, 
especially in Italy and Germany, has become the classical 
school) declares, on the other hand that it represents the 
defense of the juridical order.? Of the idealists I have already 
spoken of in connection with the theory of expiation.*? I may 
add here that it is impossible to solve the problem of pun- 
ishment by the idea of absolute justice, for it will never be 
discovered what is the absolutely just punishment which 
corresponds to any givencrime. The theory, moreover, is with- 
out any criterion of its own, and is compelled to borrow the 
“punctum ubi sistat” from the penal system of a particular 
nation and period. Finding in this system the death penalty 


1 See Part I, c. m. 

2 “Tn the view of the classical school, the criminal was not a sentient 
being, but an abstract type conceived by pure reason and existing wholly 
apart from real life. It regarded the crime not as a portion of this real life, 
but as a legal formula inscribed in a code. For it, the punishment was not a 
means of social defense adapted for attack, but a theoretic system devised 
by savants with whom the nature of the criminal was a matter of no concern” 
(A. Prins, “Les doctrines nouvelles de droit pénal,’”” — Revue de l'Université 
de Bruxelles, 1895-1896). 

3 See preceding chapter. 


272 CRIMINOLOGY [$1 


prescribed for murder, it comes to the conclusion that for mere 
homicide death is an unjust punishment, and that in this case 
a lesser punishment as, for example, life-imprisonment would 
be a just punishment. But suppose that the death penalty 
disappears from the system. This same life-imprisonment will 
necessarily take its place. As a result, life-imprisonment 
would cease, over night, to be a just punishment for mere 
homicide. It is thus apparent that the theory of absolute jus- 
tice exists in nothing but the name. 

On the other hand, what we have termed the classical 
school, justifies punishment by the necessity of defending the 
rights of the citizen. But over this social necessity it sets 
“justice” as a regulator or modifier. With this school, justice 
is thus something imported from without, superior to social 
necessity. The fact of seeking this regulator elsewhere than 
in social necessity itself, shows a lapse into metaphysics. To 
say that the just punishment is the necessary punishment, is 
exactly equivalent to saying that an unnecessary punishment 
is an unjust punishment. The thing important to establish, 
therefore, is the criterion of necessity, for by this all excess 
will be avoided. But such a criterion will never be arrived 
at by metaphysical hypothesis: the method of experiment 
alone will give it to us. This criterion once in our possession, 
there willbe no need of invoking any adventitious element. 
Social necessity, taken in its true sense and stripped of all 
exaggeration, will itself be the best guaranty of the individual’s 
rights.! 

But it is necessary that we subject to a closer examination, 
this element of justice by which the classical school limits the 
exercise of social defense. It has given rise to two principles, 
the adoption of which is responsible for the strictly juridical 
character of present-day criminal science, viz.: 

(1) Crime does not exist unless the agent is morally respon- 
sible for his act. From which it follows that the gravity of the 
crime varies with the degree of moral responsibility. 

1 See, on this subject, Von Liszt, ‘Der Zweckgedanke im Strafrecht,”’ § $2. 


§ 2] EXISTING THEORIES OF CRIMINAL LAW 273 


(2) The quantum of punishment must be in direct ratio 
to the gravity of the crime. 

“Moral responsibility”; “penal proportion”: these two 
postulates continue to form the keystone of criminal law, not- 
withstanding that science has demonstrated their inherent 
impossibility. The stone has already been loosened, but the 
ideas in question are too intimately bound up with commonly 
obtaining philosophic prejudices for any hope of its immediate 
dislodgment. The task will be a difficult one, but ultimate 
success cannot be doubted. For the rules we are dealing with, 
erroneously looked upon as the safeguard of individual rights, 
are in reality the source of the criminal law’s weakness and 
failure. 


§ 2. Moral Responsibility 


Fallacies of the Principle. — To those who, regarding pun- 
ishment as a means of social defense, at the same time decline 
to admit the existence of crime without free will, one might 
put this pertinent question: When the criminal act is the result 
of a permanent pathologic condition or of an internal impulse, 
violent or even irresistible, but such as may be expected to 
recur in the same individual, what reason exists for abating 
the social defense? Are we not obliged to say that against the 
individual whose manifest total absence of free will makes 
him incapable of controlling himself or resisting his vicious 
impulses, society requires increased, instead of lessened, 
protection? In the case of criminals formally declared insane, 
a remedy, to be sure, is found in the asylum. But the evil of 
the situation is that with moral responsibility regarded as an 
essential element of crime there follows the logical consequence 
of an almost complete impunity, even when the case is not one 
of true insanity. 

Without entering into the question of free will, we venture 
the assertion that the consciousness of our moral liberty does 
not extend so far as to warrant us in believing that we possess 
the power of thinking and feeling in any different way from 


274 CRIMINOLOGY [$2 


that in which we felt and thought on a given occasion. We 
know that the Ego cannot create itself, and that the character 
has already been formed by a series of anterior facts, for the 
most part ignored by the consciousness at the instant of its 
determination.! Were this not so, we would be compelled to 
acknowledge that in every man there takes place at each 
instant a veritable miracle, that is to say, a movement of 
mind not subject to the universal laws of nature, an initial 
movement in nowise the effect of preéxisting or supervening 
conditions, by means of which he is perfectly competent to 
decide whether he will be good or bad, just or unjust, discon- 
tented or resigned, amiable or irascible. In such case the free 
will would be a force continually creating the Ego,? — and 
this is not a fact, or at least we have no proof that it is. If, 
on the contrary, we regard the expression “free will” as 
denoting not that which creates the Ego, but simply the con- 
sciousness that we have, at any given moment, of the Ego that 
wills and decides, the impossibility of any penal system based 
upon the idea of moral responsibility immediately becomes 
clear. For this element is always limited by the circum- 
stances, intrinsic and extrinsic, which may have acted upon 
the individual’s will. It is always relative, always the 
subject of infinite gradations, and always liable to reduce 
itself to an insignificant and inappreciable minimum. Hered- 
ity, atavism, and the particular circumstances of life, such as 
environment, education, profession, climate, diet, and disease, 
all of which exert an unmistakable influence, would therefore 
operate to limit or restrain without “entirely doing away 


1 Tarde’s view of free will comes very close to ours. “‘The Ego,” he says, 
“is the bundle of habitudes and prejudices, abilities and acquirements, which 
accord with the slowly changing character. . . . If the will at the opportune 
moment has not sought to make use of the moral forces at its disposal, it is 
because the Ego, of which it is the strongest expression, sympathized with the 
cause of temptation, appropriated it to itself, made it its own. That being so, 
the Ego, there is no doubt, has not been able to will what it has not willed. 
But this very thing proves the evilness of the Ego.” 

2 See on this subject a most important study by Piperno, “La nuova 
scuola di diritto penale in Italia” (Rome, 1886). 


§ 2] EXISTING THEORIES OF CRIMINAL LAW) 275 


with” — I quote from a writer of the juristic school — “this 
spontaneous circle of movements which it is given to man to 
execute in the attainment of an end.” ! 

From this standpoint, the problem of punishment com- 
pletely defies solution. How are we going to distinguish, 
in the individual criminal, that which is the effect of circum- 
stances of the kind indicated from that which is the effect 
of free will? How are we to fix a responsibility which is sub- 
ject to infinite circumstantial limitations? 

Suppose, however, there were some means of lifting the 
veil from the life of the offender, of disclosing this life in all 
its intimate details, in all its relations with the external world, 
from the first faint cry of the new-born child up to the instant 
of the criminal act. Nevertheless, this would not help us. 
We would still be without the history of his ancestors: we 
would still be unenlightened as to how far his tendencies may 
have been influenced by heredity and atavism.' And even 
suppose that this knowledge could be acquired, how, again, 
are we to say what part has been played by psychic anom- 
alies for which the man is not to blame, and what by 
anomalies due to the brain-structure, which only an autopsy 
can reveal? 

The principle of relative or limited responsibility cannot 
therefore be applied to penal theory. The diagnosis to which 
it leads is one of purely scientific interest, — lacking complete- 
ness and uncertain in its conclusions. 

The Italian Penal Code has an article which contemplates 
the case of a semi-responsibility. If we are to be guided by the 
principle of moral responsibility, then the provisions of this 
article ought to be the rule: they ought to be applied to all 
offenders alike — to those in whose cases the circumstances 
limiting responsibility are least apparent as well as to those in _ 
whose cases these circumstances are conspicuously present. 
For no offender is without some such circumstances, and where 
not evident they should be searched for, or at least presumed 


1 Pessina, “Il naturalismo e le scienze giuridiche”’ (Naples, 1879). 


276 CRIMINOLOGY [$2 


to exist. To do otherwise—to take such circumstances 
into consideration only when they chance to come to the sur- 
face, is to work a manifest injustice. Logically, then, this 
article would govern in every case. And as a result, the pun- 
ishments established by law would prove useless, since they 
could not be administered in the prescribed measure. 

But by what criterion would we mitigate punishment in the 
individual case? The problem is not solved: it looms just as 
large as before. With the principle of relative responsibility 
admitted, how are we going to maintain that this responsibility 
is equal in all men, in the face of our knowledge that the cir- 
cumstantial limitations of free will vary “‘ad infinitum’’? 

In short, the principle of moral responsibility simply serves 
to defeat the ends of penal repression. 

Irresistible Force. — But this is not all. In modern legisla- 
tion there has been admitted the principle of irresistible internal 
force, an event which the doctrinaires conceive to be signifi- 
cant of real progress. To our mind it is quite the opposite. 
In the first place, it is plain that the adoption of this principle 
places the criminal law in subjection to the dominant philoso- 
phy of a given period. For the determinist, as has been made 
clear in the preceding pages, every criminal act, like every other 
action, good, bad, or indifferent, is a necessary effect, a mani- 
festation of the will under the influence of a motive which pre- 
vails over other motives, as the result of preéxisting causes. 
The force which directs a man’s acts on the most ordinary 
occasions of life, is not less irresistible than that which impels 
him to the most extraordinary actions. If all things are deter- 
mined, all things are equally inevitable (“tout est également 
nécessaire”’). The resistible impulse is the one which has met 
another stronger than itself. The irresistible impulse is the 
one which has proved stronger than any other. The act itself 
is evidence of the irresistibility of its impulse. If the impulse 
had been resistible, the act would not have taken place. 

“Moral responsibility,” is a phrase void of meaning, except 
in so far as we admit free choice, that is to say, the arbitrary 


§ 2] EXISTING THEORIES OF CRIMINAL LAW 277 


or undetermined choice of the will. With this as an element of 
crime, how can any sentence be intelligently pronounced? 

The danger, we may be told, is not serious, for determinism 
is not yet, and may not be for years to come, a doctrine suffi- 
ciently popular to lead judges and juries to the systematic 
acquittal of offenders, merely for the sake of consistency. 
However this may be, it is nevertheless true that instances 
may occur, and in fact have occurred, of the acquittal of des- 
perate scoundrels on the plea of the irresistible force of their 
criminal impulse. This formula, in the plainest way, neutral- 
izes the action of social defense, because the worst offenders, 
the criminals most to be feared, are the very ones in whom the 
impulse to evil is most imperious. 

The commentators, it is true, are not without assigning 
definite limits in the present regard. Many of them teach that 
to come within this principle, the impulse, blind as it is, must 
be derived from a plausible motive: that the lowest and vilest 
motives will never serve for its recognition. But all such at- 
tempts at qualification are merely opinions which may change 
over night, while the formula itself, without disguise and mak- 
ing its own applications, continually stares us in the face. It 
speaks of irresistible force, of a force which no one can resist. 
Who will tell us whether the cupidity of a cashier, excited by 
the sight of the money which another has entrusted to his 
care, is an impulse more resistible than the unrequited passion 
of a disappointed lover? Who, again, will tell us whether the 
passion of the latter is more resistible than that of the lover 
who has been forsaken for another? And how are we to meas- 
ure the degree of resistance which, in different individuals, the 
impulse ought to have encountered, but which in fact it did 
not encounter? 

These suggestions are borne out by the facts. In Italy, the 
principle of irresistible force no longer obtains, having been 
omitted from the new Penal Code. But during its existence 
as a rule of criminal law, it resulted in homicidal criminals of 
all sorts escaping conviction. Hundreds of such instances 


278 CRIMINOLOGY [§ 2 


occurred. Indeed, on one occasion it was responsible for the 
acquittal of a ruffian who had been hired to disfigure the faith- 
less mistress of his employer. Sometimes, too, it was success- 
fully invoked in favor of forgers, and even thieves. In short, 
with this principle in force, there is no offender for whom it 
does not afford a shelter. And if, in Italy, it was not always 
set up as a defense in prosecutions for extremely atrocious 
crimes, this was because the defendants’ counsel were per- 
suaded that the jury would turn a deaf ear to it. For there 
is a universal feeling which discountenances the showing 
of indulgence to certain kinds of criminals. Irrespective of 
whether it is or is not the law that the man who has committed 
a criminal act through irresistible impulse shall be unpunish- 
able, juries will invariably convict the murderer whose mo- 
tive has been none other than sheer brutality, the pleasure 
of shedding blood, notwithstanding that his impulse is evi- 
dently blind and pathologic. The oftener the thief has 
offended, the more severe will be the punishment which he 
meets at their hands. And yet, take the case of a professional 
thief, born of criminal parents, taught to steal from early 
childhood, barred from the society of honest men, associating 
continually with other criminals — who is wholly devoid of 
fear or restraint, and without possibility or desire of changing 
his mode of life. Where can we find a more perfect specimen 
of the man who is unable to resist the criminal impulse? 
If in such a case the defense of irresistibility has so scant a 
prospect of success that the prisoner’s counsel does not dare 
to raise the question, the inconsistency is manifest. If the 
principle is to be recognized at all, how can it be conscien- 
tiously rejected in this instance? The truth is, that the con- 
sideration in question is overborne by a greater, namely, 
the dictate of the social interest that dangerous criminals shall 
not be allowed at large. To deprive them of liberty it is neces- 
sary that the jury find them responsible — find that they are 
able to resist their perverse impulses. But how can they 
resist if they are without a single good instinct, if in them is 


§ 3] EXISTING THEORIES OF CRIMINAL LAW 279 


neither self-respect, nor fear of God or man? Need one be a 
determinist to conclude that so circumstanced, the criminal 
cannot be other than a criminal ? 

That being so, he is not responsible; therefore, according 
to the theory under discussion, he cannot be punished. So- 
ciety has reason to be thankful that juries do not always see 
the matter in this light. In fact, the instances in which the 
existence of irresistible impulse has been ground for acquittal 
do not constitute a hundredth part of the number in which, 
logically, it should have been admitted. While the principle 
prevailed in the Italian law, complaint was heard from time 
to time of its abuse, in spite of the fact that in the most evi- 
dent cases it was scarcely ever urged. The few instances of 
this character in which the defense was sustained sufficed to 
bring down upon the heads of the jurors a storm of popular 
indignation. They had answered according to their convic- 
tion the question that had been put to them: they had found 
what they believed to be the fact. Still, in the popular judg- 
ment they had done wrong, because their verdict resulted in 
the acquittal of a desperate criminal. To be honest, should 
they have answered the question against their consciences? 
Men could hardly have been put in a falser position. 

Such is the situation brought about by the principle which 
makes responsibility depend upon the possibility of resist- 
ing criminal passions and impulses. And this principle is a 
consequence of the equally absurd doctrine that a criminal 
is not a criminal unless he had deliberately willed to be such. 


§ 3. The Same; Insanity 


The criminal science of the jurists does not concern itself 
with the insane. As soon as the fact of alienation is established, 
it hastens to disclaim jurisdiction. And here we encounter 
a question which logically forms a continuation of our last 
subject of discussion. If the element of moral responsibility is 
to be laid aside, in determining who and what is the criminal, 


280 CRIMINOLOGY [$3 


does it not therefore follow that society ought to react against 
the crime of the lunatic, without regard to the insanity which 
has been its cause? We may expect the immediate answer:— 
“Of course, society ought to react, and it does in fact react by 
confining the dangerous lunatic in an insane asylum —a 
proceeding which is nothing else than a means of eliminating 
him from the social life. Society is even induced to take this 
step by the mere fact of insanity, regardless of whether or 
not the lunatic has committed a harmful act. For his patho- 
logic condition of mind makes it probable that he will commit 
all sorts of harmful acts, just as the fact of idleness, a morally 
pathologic condition, gives rise to the probability that the 
subject will commit all sorts of crime. But when this course is 
adopted toward the insane author of an act, which if committed 
by a sane person would be a crime, it is a very different thing 
from punishing him.” 

Unquestionably, the act of an insane person may exhibit 
the external appearances of crime without being criminal in 
reality. Take the case mentioned by Maudsley, of the woman 
who “had dreamed that her children cried out to her that the 
house was on fire, and in the confusion of waking had thrown 
her youngest child out of the window in order to save it.” ! 
No one would ever think of calling her a criminal. For unless 
the act corresponds with the intention, crime does not exist. 
The same rule would govern in cases where the act is the result 
of an epileptic access, of impulsive insanity, or of any mania 
which has caused the extinction of conscience. But does the 
fact that the madman intended to do what he did justify 
us in classing his act as a crime? We know that in many 
instances insane persons have really the intention of damaging 
or setting fire to property, or even of killing. The answer 
must be in the negative, because, according to our theory, 
crime exists only as a revelation of character, the effect of an 
improbity or cruelty, which may be either congenital or 


1 Maudsley, “Responsibility in Mental Disease,” c. vu. 


§3] EXISTING THEORIES OF CRIMINAL LAW 281 


acquired, but which in all cases has become instinctive. And 
being instinctive, it gives rise to the apprehension of new 
crimes from the same individual. It is therefore essential 
to the existence of crime, that the disease shall not have 
deprived the individual of the faculties of ideation. For if 
he is destitute of these faculties, it is no longer a modification, 
but a total annihilation of his character, with which we have 
to deal. Ina word, he has ceased to have any psychic individ- 
uality — a result which occurs in the case of mania, dementia, 
and progressive paralysis. 

In the case of certain phrenoses or neuroses which do not 
altogether destroy the faculties of ideation, but result in more 
or less serious disturbance of these faculties, the character of 
the individual very often becomes changed to such an extent 
as to be unrecognizable. The alienation, it is true, is the cause 
of the moral transformation, but this does not prevent the 
production of a persistent character, as in the case of hysteria 
and melancholia. If, then, insane persons of this class are 
subject to criminal impulses, if they reveal tendencies to 
homicide, theft, incendiarism, rape (impulsive lypemania 
and homicidal mania, kleptomania, pyromania, erotomania), 
or to crime generally, by reason of any form of mania which 
destroys or impairs the moral sense, we are obliged to conclude 
that they have become the possessors of a criminal character, 
and that further crimes on their part may be expected.! 

The question then finds itself solved. These are, in fact, 
criminals, but insane criminals. In other words, they are 
criminals of a species apart. Their moral anomaly is likely to 


1 Tt may be said in this case, to use the expression of Tarde, that the of- 
fender, who is the cause of the act in question, is identical with himself. 
For Tarde, the basis of responsibility is the personal identity: for us, it is the 
moral character. In my opinion the two come to the same thing, and the 
result should be that when the insanity in point of fact consists in systematized 
criminal ideas, or in the destruction of the moral sense, it ought to be dealt 
with by the criminal law. See on this subject an excellent article by Puglia 
who has unreservedly declared in favor of this theory: “II principio genetico 
del diritto di.punire” (Scuola positiva, Naples, 15 and 30 January, 1892). 
See also G. Fioretti, ‘Genio e follia” (Naples, 1902). 


282 CRIMINOLOGY [$3 


fluctuate with the varying phases of their disease; their char- 
acter is capable of improving or even of returning to its former 
state; complete restoration or total disappearance of the moral 
sense are both possibilities. 

Such being the case, it seems plain that for insane criminals 
there ought to be reserved a special treatment — a treatment 
adapted to the disease which is the cause of their crime. 
Nor does this result involve us in any contradiction. On the 
contrary, it is merely a reaffirmance of our central principle, 
namely, that repression is to be regulated by the particular 
nature of the criminal, — on the one hand, by his degree of 
insociability, on the other, by the possibility of his adaptation. 
The most important implication of the present conclusion 
(and in this we are at one with the jurists) is that the death 
penalty cannot be inflicted upon the insane. Here, again, 
we may seem inconsistent. But the fact is quite the opposite. 
For if the man’s moral sense has been impaired, his character 
corrupted, by disease, the ensuing perversity cannot be viewed 
in the same light as that of other criminals. If he has lost his 
idoneity for the social life, its lack will wear the appearance 
of an unfortunate accident, and although he may be dangerous 
as any murderer, he will not be the object of the same detesta- 
tion. The death penalty is not proper in the case of the insane 
criminal, because a necessary condition of its application is 
that sympathy for the criminal has ceased to exist. In the 
case of disease, sympathy is intensified rather than destroyed, 
for the subject is in need of aid and it is society’s duty to aid 
him. As a result, society, in reacting, has no right to destroy 
the individual. If elimination is required, it can only be 
effected by his confinement for life in an asylum provided 
for criminals of this species. 

The criticism that our theory tends to extravagant conse- 
quences is therefore wholly without foundation. Writing in 
1880, Paulhan has this to say: “If we are to accept Garofalo’s 
principle, how, I would ask, are we to distinguish between a 
criminal and an incurable lunatic? Moreover, why should 


§ 3] EXISTING THEORIES OF CRIMINAL LAW 283 


we not execute the dangerous madman whose disease is 
beyond remedy?” For the distinction we need go no further 
than the principles themselves, which I have laid down, be- 
ginning with the concept of crime and ending with the con- 
ditions under which the death penalty is to be applied. It 
is impossible to conceive of the application of the death penalty 
to an individual whose character is not permanently perverted 
— to a criminal, that is to say, who is. not typical but fortui- 
tous. Insanity does not engender a permanent moral char- 
acter: the perversity in this case is transient and capable 
of change. The repression of insane criminals forms part of 
our system of punishment, because the word “punishment” 
does not always mean for us the same thing as it does for the 
jurists. But this repression ought to have different forms 
appropriate to the modifications of character for which the 
disease is responsible, and which fluctuate with the phases of 
the disease itself. No doubt, from the determinist standpoint 
the monster is no more to blame for being a monster than the 
lunatic for being a lunatic. Both, however, are equally 
dangerous to the community. Hence there must be repression 
in both cases, but not the same kind of repression. For if the 
violation of the sentiment of pity constitutes crime, the same 
sentiment would be violated by killing the insane criminal — 
a result which does not occur when the criminal monster is 
conducted to the gallows. ; 

But, we may be asked, is it not likely, that with the advance 
of knowledge this social sentiment, which denies sympathy 
to the instinctive criminal, will undergo change? When all 
men come to understand that the ferocity of the murderer 
is the fault of his psychic organization, will he not become an 
object of compassion? Will not his anomaly be viewed in 
the same light as insanity, epilepsy, and other nervous dis- 
orders? To which I would answer that no such change is pos- 
sible, for the sentiment in question is in complete accord with 
the conclusions of reason. The two cases are utterly different. 

1 Revue philosophique, July, 1880 (Paris F. Alcan). 


284 CRIMINOLOGY [§3 


In the one, as progress in the science of anthropology will make 
clear, we have to deal with an individuality which is intrin- 
sically maleficent, and immutably so; in the other, with an 
individuality which has become maleficent as the result of an 
accident, but in which the maleficence is not necessarily a per- 
manent condition. In short, the distinction is between the 
natural instincts, innate in the individual, the instincts which 
go to make up his real and irreducible character, and the 
adventitious instincts resulting from a physical deterioration. 
The latter may disappear as suddenly as they have come, 
because they are not created by a force inherent in the organ- 
ism, but, on the contrary, by a force which is warring upon and 
seeking to destroy the organism. 

The foregoing is but one of many considerations which go 
to justify the death penalty as such. But with this justifica- 
tion I am not at present concerned. What has just been said 
is for the purpose of assigning to the application of this punish- 
ment the fixed limits which are demanded by the theory of 
natural crime. 

Insane criminals, then, form a class apart. Here we differ 
from the jurists in but one respect. According to their doctrine 
the fact of alienation prevents the existence of crime: once 
this fact is established, the case passes from out the cogni- 
zance of the criminal law. We maintain, on the other hand, 
that crime may exist notwithstanding the fact of alienation. 
It is, however, crime of a species distinct from all other crimes 
— crime which is the effect, not of a moral character deter- 
mined by a permanent cause, but of a moral character de- 
termined by a transient pathologic condition and suscepti- 
ble, therefore, of amelioration, pejoration, or transformation. 
As his disease undergoes mutations, the dangerousness of the 
criminal may increase, may diminish, or may even entirely 
vanish. Hence there should be, in this case, repression of a 
special form, not absolute elimination, but confinement for 
an indefinite period in an asylum for the criminal insane. If, 
for example, the mania of persecution which is the initial 


§ 3] EXISTING THEORIES OF CRIMINAL LAW 285 


cause of a homicide, gives way to dementia, as is frequently 
the case, this repression will no longer be needed, and the sub- 
ject can be cared for elsewhere or returned to his family. 
We have thus a form of elimination suited to the case of crim- 
inal alienation, just as the other forms of repression are suited 
to the case of ordinary crime —a means by which society 
will defend itself against the insane criminal, just as by means 
of a different description it will defend itself against the non- 
insane criminal. Why, then, should it be found necessary to 
exclude this species of crime from the domain of the criminal 
law? 

It should further be noted that internment of the lunatic 
in an asylum conforms to the requirements of what we regard 
as true repression, in respect of the selection to which it gives 
rise. One effect only seems to be lacking, namely, intimida- 
tion,— for, as has been said, “a man does not go mad at will.” 
But for us, it will be remembered, intimidation is only a subor- 
dinate and accessary effect and not an effect which constitutes 
the true criterion of punishment, as is taught by the classical 
school. Again, the problem is not to prevent insanity, but to 
prevent the crime which the lunatic is capable of committing. 
If the lunatic is merely a monomaniac, the menace of an in- 
definite term of imprisonment may not be without influence 
upon him. For, as Maudsley has pointed out, insane persons 
are to a certain extent influenced by the same motives as 
sane persons in what they do or forbear to do, and for the most 
part regard the deprivation of their liberty as a grievous 
suffering.1 Then, too, when even insane criminals may be 
convicted and sentenced to an indefinite term of detention, 
this is likely to put a stop to the practice of feigning insanity, 
which, be it observed, is by no means as uncommon as might 

1 Maudsley, “‘ Responsibility in Mental Disease,” c. 1. 

“There can be no doubt that the insane inmates of asylums are to some 
extent deterred from doing wrong and stimulated to exercise self-control by 
the fear of what they may suffer in the way of loss of indulgence or the 


infliction of a closer restraint if they yield to their violent propensities” 
(Ibid. c. v). 


286 CRIMINOLOGY [$3 


be supposed. Taylor assures us that he examined a large num- 
ber of true criminals who had been acquitted on the plea of 
insanity, without finding one who exhibited the least symptom 
of alienation.1_ Instances have been known in Italy where 
murderers acquitted on the ground of lypemania appeared so 
sure of future impunity as openly to boast that they had 
nothing to fear from the law. Indeed, in one such case, 
an offender who had murdered two persons and attempted the 
death of a third is said to have publicly declared that he might 
kill whom he pleased without incurring the slightest risk.” 

Furthermore, the jurists are under the necessity of setting 
arbitrary limits to the defense of insanity so as to exclude 
from its benefit the accused who is suffering from monomania.’ 
By making criminal insanity a subject of penal repression, 
such a limitation will be no longer required. Without doing 
violence to the teachings of science, society will find adequate 
protection in the plan outlined above. Under this, monoma- 
niac criminals will be treated as criminals of a species apart. 
Against them will be employed the requisite mode of elimina- 
tion, namely, confinement for an indefinite term in an insti- 
tution, half prison, half hospital. And to the judicial power 
will be entrusted the duty of trying and sentencing them, as 
well as that of seeing to their liberation, when they have 
wholly ceased to be dangerous. 

A decidedly senseless feature of the present system is that 
of treating semi-insanity as an extenuating circumstance. 
In such case, the punishment prescribed by law is inflicted, 
but the length of its term is greatly cut down. It is because 
of this feature that there have occurred, and in fact occur 
every day, instances of homicidal criminals and incendiaries, 
monomaniacs perhaps, but nevertheless extremely dangerous 
offenders, escaping with a sentence of a few years’ imprison- 
ment. If we were to take the resolute stand that these indi- 


1 Taylor, ‘Principles and Practice of Medical Jurisprudence.” 

2 See Lombroso, ‘‘Incremento del delitto in Italia,” p. 107 (Turin, 1881). 

8 See on this subject Adolphe Franck, “Philosophie du droit pénal,” c. v, 
p. 140 (Paris, F. Alcan, 1880). 


§ 4] EXISTING THEORIES OF CRIMINAL LAW 287 


viduals are really insane, the result would be their confinement 
for life, or what appears much more practicable, for an in- 
definite term. 

This sort of extenuating circumstance, indeed, seems to 
exist for the sole benefit of the alienist experts. As one author 
has justly observed: “However great may be the faults of 
the criminal law, the harm which they work is as nothing com- 
pared to what is suffered from insanity experts. There is 
hardly a criminal case in which at least one expert may not be 
found ready to testify to the partial responsibility of the ac- 
cused, that is to say, when he does not see fit to declare him 
completely irresponsible. Were it not that judges and juries 
sometimes have the courage to disregard such testimony, orelse 
become thoroughly disgusted with the witness’ answers, the 
acquittals continually ensuing would be a public scandal.” ! 


§ 4. The Same: Drunkenness 


A further difference between the doctrines for which we 
contend and that of the prevailing criminal law, exists with 
respect to the state of drunkenness. To determine how this 
shall be dealt with by the criminal law many different theories 
have been evolved, some of which, unfortunately, have been 
embodied in criminal legislation. The attempt has been 
made to determine the question of responsibility by provisions 
of general application. Drunkenness has been placed on sub- 
stantially the same footing as alienation, in such wise that the 
severity of punishment is made to depend upon the degree of 
the offender’s intoxication. The result is that he is punished 
more or less severely, but always less severely than if he had 
not been drunk. 

The criminalist of the positive school, on the contrary, will 
not seek the establishment of any general rule. He will 
distinguish drunkenness, the effect of which is merely to exag- 
gerate the character, from alcoholism, which is a true disease 
and capable of entirely changing the character. In the first 

1 Frassati, “Lo sperimentalismo nel diritto penale,” p. 327 (Turin, 1892). 


288 CRIMINOLOGY [$4 


case, the offender will be dealt with in the same manner as if 
the act had been committed in his normal state, for the excita- 
tion of the alcohol is merely the occasional cause, the fact 
which reveals the criminal instinct. No matter how much 
liquor the man of mild character may consume, he will never 
be guilty of stabbing his companion to death in a tavern 
brawl. The drunkard may then be compared to a choleric 
man who, in a transport of rage, does what would not have 
been done by a man of calm temperament, — who, although 
capable of shouting, gesticulating, and proceeding to other 
extravagances of deportment, is quite incapable of committing 
true crime. Incapable, that is, unless the criminal instinct is 
conjoined with his rage, in which case he will become a murderer 
in his transport, just as the man of calm temperament, pos- 
sessed of the same criminal instinct, will become a murderer 
in his apparent phlegm. What we are here confronted with, 
is not the question of an augmented or diminished respon- 
sibility, but that of preserving society from murderers, the 
phlegmatic and choleric, the insane and the drunken, alike. 
The necessary means, perhaps, will differ, but each and all 
will conduct directly to their end, without wandering astray 
in the useless quest for the precise degree of responsibility. 
To determine whether the drunken man has committed a 
crime, we must ascertain whether the nature of the crime cor- 
responds with the character of the individual; we must see 
whether the inhumanity or improbity of the act is so in keeping 
with the propensities of the offender as to make it plain that 
the drunkenness has had merely the effect of determining these 
propensities, and rendering them unmistakably manifest. 
Cases abound of crimes committed in a state of drunkenness, 
where the accused have undergone previous convictions for 
the same sort of offense. There are other cases where, although 
not previously convicted, the defendant is known to have had 
a bad reputation. What is to be done with such criminals? 
Their drunkenness must be wholly disregarded: they must be 
dealt with precisely as if they had not been drunk. But, 


§ 5] EXISTING THEORIES OF CRIMINAL LAW 289 


again, cases may arise (especially in crimes otherthan homicide 
and theft) where there is a clearly evident incompatibility 
between the punishable act and the character of the offender, 
the existence of which incompatibility requires us to attribute 
the crime to the alcoholic excitation alone. This situation 
oftenest occurs in the case of offenses such as strikings 
(“coups”), insults (“injures”), incendiarism, indecent as- 
saults, and defamation. If it be found that the punishable 
act has not been premeditated before the drunkenness ensued, 
that the offender has not sought by the use of the liquor to 
strengthen a purpose already formed, then the act in question 
must be regarded as an involuntary offense, and not as a 
true crime. 

The case is otherwise with the impulsive criminal who has 
become what he is as the result of chronic alcoholism. We 
have here a continuing cause of crime, a cause which will per- 
sist until the causes of the vice disappear. Consequently, 
what is needed for offenders of this description is not leniency 
of punishment, but special treatment. Like insane criminals 
they should be confined in an asylum combining the features 
of both prison and hospital, from which they will be discharged 
only in the event of their being completely cured of the vice. 


§ 5. The Same: Hypnosis 


The subject of hypnotic suggestion need not long detain 
us. As yet, few instances are known where hypnotism has 
been employed to induce the commission of crime, and these, 
moreover, are not very well authenticated. Should, however, 
the art of hypnotism become a matter of more general knowl- 
edge and be taken advantage of by criminals, there would 
be need of a definite rule. In that event, it is plain, under any 
sort of theory, that the hypnotizer would be properly punish- 
able as the real author of the crime, while the person hypno- 
tized could only be regarded as the passive instrument, — 
guilty, perhaps, of an involuntary offense for having impru- 
dently subjected himself to the hypnotic influence, but of 


290 CRIMINOLOGY [$6 


nothing more. A very different case, however, would be pre- 
sented where the agent has been hypnotized at his own 
instance, to guard against the possibility of his resolution 
weakening at the last moment. Here, according to the prin- 
ciples of the classical school, no guilt on his part would exist. 
Whatever may have been his previous design, if at the instant 
of the rape, homicide, or other crime, he had no longer moral 
liberty and consequently could not recede from the accom- 
plishment of this design, the jurists to be consistent would 
have to declare him unpunishable. 

The logic of our theory conducts to the opposite conclusion. 
In such a case, where the suggestion is merely a means of 
rendering the criminal intention irrevocable, of strengthening 
the resolution already formed, there is nothing to diminish 
the necessity of social defense. The situation is similar to 
that where the offender intentionally makes himself drunk 
immediately before the commission of the criminal act. 
Furthermore, it seems to be true that the subject obeys the 
suggestion only when the thing which he is ordered to do is 
not repugnant to his moral character; otherwise he resists, 
and renders the suggestion unavailing. This is a view which 
I advanced many years ago, and which is now generally 
accepted. Although many examples might be cited in its 
support,! proofs, however, are still insufficient to warrant a 
definite conclusion on the point — to enable us to say with 
certainty whether, in the act dictated by suggestion, all 
voluntary participation of the subject is to be excluded, or 
whether the suggestion merely operates to provide him with 
the impulse to do what he desired to do. 


§ 6. The Same; Infancy 


It remains to consider the application of the principle of 
responsibility to the age of the offender. The codes following 
the theoretic ideas upon which they are based, fix an age 


1 Sighele, (“La foule criminelle,’’ French transl. — Paris, F. Alcan), relates 
a large number of cases of this character. 


§ 6] EXISTING THEORIES OF CRIMINAL LAW 291 


limit under which there cannot be complete responsibility, 
setting this, for the most part, at eighteen years. In the case 
of childhood, adolescence, and early youth, they admit a 
limited responsibility, the legal effect of which is a reduction 
of punishment, varying from one or two degrees to as much 
as one-half or three-fourths. 

This rule of thumb leaves wholly out of account dintiad. 
tions of sex, maturity, and disease, as if these circumstances 
were of no possible importance. Needless to say, it cannot 
be accepted by positive criminal science. As has been already 
pointed out, criminal psychology and anthropology furnish 
us with the means of recognizing in the child the born criminal, 
of recognizing in the youth corrupted by bad examples, 
whether of his family or of his associates, the incorrigible 
offender. “A certain proportion of offenders,” say Marro 
and Lombroso, “have been such since their earliest years. 
This result may or may not be due to hereditary causes, or to 
put the case more clearly, if some of them are the victims of 
a bad education, for most of them education has accomplished 
no good.”! This opinion is substantiated by a multitude 
of examples. The propensities to violence and bloodshed 
sometimes begin to manifest themselves at a very early 
age: they result in the child inflicting a series of violent physi- 
cal harms, trifling in importance, perhaps, but entirely without 
provocation. Such acts the law ordinarily punishes with a 
few days or months of imprisonment. They are repeated, 
too, with a frequency which would hardly be credited by one 
who has never had occasion to inspect the record-sheets 
(“casiers judiciaires”)* of criminals. And these sheets, 


1 “T germi della pazzia morale e del delitto nei fanciulli” (Archivio di 
psichiatria, scienze penali, etc., Vol. IV. No. 2). See further on this subject 
a very interesting article by Gino Carlo Speranza, “Criminality in Children” 
(Green Bag, November, 1903). See also Perez, “L’éducation morale dés le 
berceau,” p. 110 (Paris, F. Alcan, 1888). 

2 [“Casier” literally signifies a filing case: a cabinet furnished with pigeon- 
holes. From the use of such a cabinet in filing data, the term “‘casier judi- 
ciaire” has come to be applied to the record of an individual’s convictions. 

“In criminal and correctional matters . . . investigation of the suspect’s 


292 CRIMINOLOGY [$6 


be it noted, tell but a part of the story: they speak only of 
such of the offender’s acts as have been the subject of judicial 
cognizance. 

In very many instances a brutal murder is simply the sudden 
revelation of an instinct for bloodshed on the part of the of- 
fender, which the anthropologist might have discovered long 
before. And yet,we are aways ready to excuse the former 
crimes of such an individual, solely on the ground of his youth 
at the time of committing them. They are not a subject of 
especial concern, being always attributed to the heat of the 
passions, while as a matter of fact they often involve the 
manifestation of an innate and indomitable perversity, which 
will only increase with the added years. It is in such cases, 
particularly, that anthropology could render a most important 
service to criminal science, completing for us the description 
of the typical physiognomy, both physical and moral, of the 
instinctive murderer or thief. The criminalist, convinced 
that in this youthful offender he has to deal with an individual 
born to crime, an individual who with his advance in years 
will be an ever-increasing menace to society, ought to demand 
the adoption of the adequate means of repression. He ought 
to insist that segregation for life, or at least for an indefinite 
term, take the place of the few months of imprisonment in a 
so-called “house of correction”’ (deserving rather to be termed 
a “house of corruption”’), usually meted out to such an offender 
under existing laws. 


antecedents is rendered possible by the system of ‘casiers judiciaires,’ the 
essential idea of which consists in keeping a local register, in the judicial record- 
office (‘greffe’) of the arrondissement wherein the individual was born, of 
every sentence pronounced against him, at any time or place. . . . Whenever 
a suspect or an accused appears before a court, nothing is easier, with knowl- 
edge of his birthplace, than to procure his judicial biography. The ‘casier 
judiciaire’ is therefore an accessory mechanism in the application of the laws 
relating to recidivism.” Upon request, the keeper of the records furnishes a 
“bulletin” or extract enumerating the prior convictions. The system was 
suggested by Bonneville de Marsangy and put into effect by an administra- 
tive order of the French government in 1850. It was subsequently adopted 
in Italy and other countries. (Garraud, “Traité de droit pénal frangais,” 
III, pp. 168-170). — Transt.] 


§ 6] EXISTING THEORIES OF CRIMINAL LAW 293 


The authors last cited (Marro and Lombroso) suggest the 
use of the Froebelian method of education, supplemented 
by a special hygienic regimen, as a means of overcoming 
the criminal tendencies of children. If, however, these ten- 
dencies are found to be tenacious and ineradicable, they have 
no hesitation in proposing “the confinement for life in an 
appropriate institution (‘una casa di perpetuo recovero’) 
of minor offenders under the age of twenty-one years.” 

Even in the case of the most heinous offenses, the codes 
punish criminal children under fourteen or sixteen years of 
age by a few years of imprisonment or surveillance, and lessen 
the punishment to correspond with their limited responsi- 
bility. How far apart criminal law and science are in this 
regard, is painfully obvious.! 

From our summary examination of the subject of moral 
responsibility, are we not warranted in concluding that such a 
doctrine is in manifest contradiction to the object of social 
defense? And ought not the fact of this contradiction to be 
patent, even to those who to some degree believe in the exist- 
ence of free will on the part of the criminal? As we shall see 
later, the legislation to which this doctrine has given rise, 
while professing to have as its end the protection of society, 
in reality protects nothing. The utter failure of the doctrine 
in practice is such as might be expected from its invalidity in 
theory. 


1 The former Italian penal code, which fixed at twenty-one years the age 
of complete responsibility, did not allow, however, a reduction of punishment 
in the case of minors between eighteen and twenty-one years guilty of the of- 
fenses most shocking to the sentiment of humanity, such as parricide, robbery 
accompanied by murder, and the like. This exception offended the jurists’ 
notions of uniformity, and they were successful in keeping it out of the new 
eode. As a result, instances have occurred of criminals, comparable only to 
ferocious beasts, turned loose to prey on society after serving some years in 
prison. The draft code, it must be said, fixed at eighteen years the age of com- 
plete responsibility in all species of crimes, but the consensus of opinion in 
both chambers being in favor of twenty-one years, the limit was so fixed in 
the code as finally adopted. 


294 CRIMINOLOGY [$7 


§ 7. Proportionality between Crime and Punishment 


Our attention must now be directed to the other cardinal 
principle of the classical system, namely, the rule of penal pro- 
portion, or in other words, the necessity that the quantum 
of the punishment shall correspond with the quantum of the 
crime. At first glance, this rule may not appear an objection- 
able one, but a very slight examination serves to disclose its 
inherent unsoundness. Scrutiny of the two terms which it 
involves immediately makes clear the impossibility of establish- 
ing between them any relation useful to social defense. 

The Gravity of the Crime. — The first term, viz., the gravity 
of the offense, is insusceptible of exact determination, for the 
reason that a uniform criterion is lacking. Sometimes it is 
the damage, sometimes the alarm, occasioned by the criminal 
act. Sometimes, again, it is the importance of the duty which 
has been violated. Different authors have different opinions 
in this regard. Thus the Italians give preference to the first 
two, while the French school, founded by Rossi, declares for 
the third. Certain it is, however, that no one of these ele- 
ments by itself furnishes an adequate test for the solution of 
the question. The conclusions arrived at, it is true, are not 
dissimilar, because, as a practical matter, the alarm must very 
often depend upon the immorality of the act and, at the same 
time, upon the damage. Nevertheless, the graduated scale 
of offenses, with its distinctions of species and sub-species, 
is nothing more than the result of an arbitrary compromise 
of conflicting juristic theories. 

For the advocates of the damage criterion, the question of 
criminal attempt presents serious difficulties. Confronted 
with this question, they are either compelled to abandon their 
test altogether, or else invent for their purposes a new species 
of damage which they call indirect. This consists in the danger 
which has been incurred as a result of the criminal act. But 
in adopting such a course, they signally fail to explain why 
the danger which is past should be called upon to measure 


§ 7] EXISTING THEORIES OF CRIMINAL LAW) 295 


the importance of the crime. How, moreover, are we to com- 
pare, one with another, the heterogeneous facts which consti- 
tute direct damage in different cases, such as the physical pain 
of a wound, the moral suffering engendered by a calumnious 
accusation, the loss of money or property attendant upon 
some crimes, the shame and dishonor attendant upon others? 
Who will tell us which of these harms is the most keenly felt, 
the most irreparable, the one which brings in its train the most 
serious consequences? Any attempt to fix the gravity of the 
direct damage occasioned by the various offenses, in such 
wise that it shall furnish a basis for determining the relative 
gravity of the offenses themselves, seems to us utterly hopeless. 
If, then, we would use the test of damage, we are driven to an 
estimate of the indirect or social damage, that is to say, the 
alarm and the effect of the evil example. But here we can 
only proceed by the sheerest empiricism, for the relative 
gravity of offenses would be dependent upon a thousand cir- 
cumstances of time and place. Their importance would be 
measured according to the public appreciation of the danger, 
the alarm, —and not according to their true quantum. This it 
is impossible to appraise without an acquaintance with the life 
history and the psychology of the offender. The social danger 
is not that to which an individual has already been exposed, 
but that which continues. Of itself, the past danger is with- 
out sociologic importance: it is important only as one of the 
elements which enable us to determine the future danger. 

The importance of the duty violated, when applied as a cri- 
terion, serves merely to create a fresh problem.! How are 
we to recognize the relative importance of different duties? 
“Ask the human conscience,” — answers Rossi, — “that 
conscience which speaks even from the lips of childhood, 
whose notions of justice assuredly do not find their source in 
the law.” 2 But how far will the responses of this conscience 
be certain and uniform? Rossi himself is obliged to admit that 


1 See Carrara, ‘‘Programma del diritto penale,” § 184. 
2 Rossi, “Traité de droit pénal,” Book III, ec. rv. 


296 CRIMINOLOGY [$7 


the “fact of conscience’ cannot be studied in the individual 
case, — that his method can do no more than fix the principal 
categories. But here again doubt takes the ascendant. 
“There may exist a constant moral criterion to determine that 
certain actsare evil, but there is certainly no universal and con- 
stant moral criterion by which we may judge that one of these 
acts is more evil than another.”! “For,” adds a German 
author, “it never can be said, under any circumstances, that 
from the moral point of view any given offense surpasses 
another in gravity.”’? The different species of duties are too 
differently appreciated, not only by individuals but by the 
social classes as a whole. It must be noted, also, that the terms 
of the comparison are not homogeneous. The public con- 
science, unquestionably, will have no hesitancy in declaring 
that theft, rape, swindling and malfeasance in office, for 
example, are crimes, but it can only stand mute when asked 
as to the degree of intrinsic immorality pertaining to each of 
these crimes. 

The truth is that no method whatever will enable us to 
determine in an absolute manner the relative gravity of 
offenses. There are too many elements to be taken into 
consideration. We have to deal with the gravity of the mate- 
rial harm, that of the immaterial harm, that of the intrinsic 
immorality of the act, that of the danger, and finally, that of 
the alarm. What right have we to single out any one of these 
and ignore the others? 

The Gravity of the Punishment. —In spite of these diff- 
culties, there was formed, at least for the principal species, 
a scale of crimes graduated according to their supposed gravity, 
over against which was set a similar scale of punishments. 
The penal problem was regarded as solved when the highest 
and lowest degrees of the one were made to coincide with the 
highest and lowest degrees of the other. In this, we have 


1 Carrara, op. cit., § 184. 
2 Von Holtzendorff, “‘Das Verbrechen des Mordes und die Todesstrafe,” 
c. 19. 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 297 


what the classical school terms “penal proportion.” The 
greatest thinkers, it is true, have not yielded assent without 
misgiving. Rossi, for example, declares that “this method 
does not offer enough landmarks to ensure our keeping on the 
right path.” But he was unable to suggest any other. With 
the two parallel catalogues of crimes and punishments in front 
of us, he says that “‘there would be a chance, as we descended 
the scale, of recognizing the relation of the several punish- 
ments or degrees of punishment with the several crimes.” 
Subsequently, however, he admits that a valid point of de- 
parture is lacking, and that therefore the problem remains 
unsolved.! 

Still, if this distinguished scholar was able at all to reconcile 
himself to the method in question, it was only because he did 
not regard the social defense by the prevention of crime as the 
true end of punishment. He was a believer in absolute justice, 
and hence in the necessity of repairing evil by evil. The 
inexplicable thing is that the same method is adopted by those 
for whom prevention is the principal object of punishment. 
For logically it would seem that to accomplish prevention, 
our first step should be to discover the degree of prevention 
which the menace of the various punishments is capable of 
exercising, rather than to set up a purely theoretic proportion 
which can be of no possible aid in this regard. 

The theory advocated by Romagnosi and Feuerbach is 
somewhat more rational. Here, the punishment is propor- 
tioned to the degree of desire or criminal impulse, so that it 
may serve as a counter-impulse, capable of overcoming the 
former. But this theory, as has been already suggested, 
verges on intimidation — tends, that is to say, to make the 
guilty person an instrument wherewith society may terrorize 
others. According to these authors, punishment ought to 
increase in direct ratio to the criminal impulse, because, as 
they view it, the stronger the impulse, the greater the danger to 
society. This, if I am not mistaken, is the weak point of the 

1 Rossi, op. cit., Book III, e. vt. 


298 CRIMINOLOGY [§ 7 


theory. For it may be that once the crime has been com- 
mitted, the danger in question has diminished or become non- 
existent. On a future occasion the impulse may not possess 
the same energy, for its force at the time of the criminal act 
may have been the effect of exceptional circumstances which 
will never recur. In that case we would be punishing the 
offender, not on account of the danger arising from himself, 
but because of the danger to be apprehended from others. 
On the other hand, if the impulse to which the crime was due, 
was a weak one, this does not argue an absence of violent 
impulse in the future. The very weakness of the reaction may 
encourage the force of the impulse. The desire need not be 
very keen nor the passions greatly excited: the absence of the 
moral sense alone is sufficient to cause the criminal movement 
(“mobile’’) to prevail. In the present case, then, the counter- 
impulsion would be inadequate, just as in the former case 
it would be excessive. The sole object of the punishment, 
therefore, would be indirect prevention. The offender would 
be punished not for that which he is capable of doing, but 
for that which others, moved by his example, are capable of 
doing in his place. The reasons which prevent us from 
adopting the theory of intimidation have already been fully 
explained, and need not be here repeated. We believe in 
inflicting a harm upon the offender only so far as this harm is 
made necessary by the danger deriving from the individual 
himself. Special prevention ought to be the direct object of 
punishment. General prevention will be its occasional effect — 
an effect which, as has already been seen, will never fail of 
production, when the means adopted are those exactly suited 
to the individual. 

What we must measure, then, is not the force of the crimina. 
desire, but rather the strength of resistance to this impulse — 
in other words, the moral sense of the individual. Only by 
thus proceeding can we attain to the knowledge of what is to 
be feared from him. If this is possible, the problem is all but 
solved. Nothing more remains than to adapt the means of 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 299 


prevention to the agent’s degree of constant perversity. 
Search for a quantitative criterion of crime therefore becomes 
utterly useless. 

The difficulty of arriving at such a criterion, because of the 
lack of homogeneity in the terms of comparison, has just 
been pointed out. Even if it were possible to confine our 
comparison to crimes of the same species, our efforts would 
come to nothing. The use of the damage test would lead us 
no further than the measure of the material or pecuniary 
reparation owed to the injured party. As for the other criteria 
referred to above, they are never of any importance save 
as representing elements of the constant perversity of the 
offender. 

The graduated scale of punishments must then be entirely 
discarded. With its disappearance, the relation sought to be 
established loses one of its terms, and the question of penal 
proportion ceases to exist. 

The True Inquiry — the Question of Adaptation. — In its 
stead, the question with which we are called upon to deal 
is that of the adaptation of the offender to the social life, in the 
various classes of crimes. Our efforts, in other words, are to 
be directed, not to measuring the quantum of harm to be 
inflicted on the criminal, but to determining the kind of re- 
straint best fitted to the peculiarities of his nature. 

“What!’’ some one may exclaim, “Would you make no 
distinction in punishment between the man who has stolen 
twenty francs and the man who has stolen but twenty 
centimes?” 

My answer is that I do not know, for the question is one 
which cannot be decided abstractly. The thing important 
here to determine is — which one of these two thieves has the 
greater criminal aptitude, and is thus the greater danger to 
society? It may well be the former, but it may quite as well 
be the latter. 

What we are aiming at is not to fix the quantum of suffering 
occasioned by the offense, on the basis of the value of what has 


300 CRIMINOLOGY [$7 


been stolen, but to designate the repressive means which shall 
be exactly appropriate, that is to say, the obstacle capable 
of averting the danger. The problem then can be formulated 
in but one way. “By what means are we to determine the 
offender’s degree of constant perversity and the degree of 
sociability which he still retains?” 

To answer the question requires us, first of all, to recall the 
distinctions arrived at in our study of criminal anomaly. 
Having before us the different groups fixed by our analysis, we 
shall proceed to compare the particular criminal in question 
with one or other of these groups. We shall be careful not to 
exclude the “‘ objective ” circumstances of the crime — the cir- 
cumstances from which the existing law determines the serious- 
ness of the offense. On the contrary, we shall select from 
among them, such as are really indicative of perversity, as 
well as those which will enable us to assign the case in hand to 
its proper class. For example, the circumstances which char- 
acterize aggravated theft (“vol qualifié”) will no doubt be 
subjected to examination, but only as constituting one of the 
elements which will enable us to determine whether the author 
of the offense ought to be classed as a thief from instinct, 
from idleness, from the effect of a neglected and depraved 
childhood, from the effect of bad company, or simply because 
of the evil examples of his family surroundings. 

For this purpose, we ought to know the previous history of 
the offender, — and it will therefore become necessary to 
investigate as closely as possible his family and social relation- 
ships. The age of the criminal will be a most important cir- 
cumstance. Inquiry must also be made as to the education 
which he has received, his occupations, and his general 
aim in life. 

Stress has been laid upon the difficulties of such an investi- 
gation. The fact is, however, that very much the same sort 
of inquiries are made daily in the criminal courts. The differ- 
ence is that their results are not sufficiently taken into con- 
sideration in passing sentence. Under the prevailing law, these 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 301 


circumstances affect only the measure of punishment, while 
for us they operate precisely to determine the repressive 
means required and the kind of punishment thereby entailed. 

These repressive means will be naturally pointed out by the 
possibility of the offender’s adaptation, that is to say, by the 
conditions of the environment in which presumably he will 
cease to be dangerous. If, for example, the case is that of 
an offender who has committed a theft, the first thing to 
be determined, — and from the subjective characteristics, — 
is whether we must apply to him a means of elimination, or 
whether mere enforced reparation will not suffice. Should 
elimination be found requisite, then we must see whether it 
ought to consist of internment in an oversea penal colony 
(“relégation’’) for life or for an indefinite term, or, in the event 
that the age of the offender is such as to offer the hope 
of his moral reformation, whether it should not take the form 
of his commitment to an agricultural colony or industrial 
establishment. 

Poletti, while recognizing the validity of the criterion thus 
proposed, has endeavored to harmonize it with the theory 
of responsibility, that is to say, relative responsibility, for he 
can conceive of no other. “So far as prevention is concerned,” 
he says, “we can effect this reconcilement by adding to the 
sentiment of responsibility for the act, fear of the punishment 
which in ordinary cases is deemed sufficient to thwart the 
offense. With respect to repression, we accomplish the same 
result, if to these two sentiments which have not been suffi- 
cient to prevent the offense, we add the carrying out of the 
threatened punishment in such measure as the law deems 
sufficient for its own defense, (“che la legge reputa sufficiente 
a tutelare il diritto””), and to suppress the desire of committing 
new crimes.” But is the law to deem sufficient that which 
experience has shown to be insufficient? It seems hardly pos- 
sible that such can be the author’s idea, for a fiction of this 
sort could serve no useful end. If, then, the punishment estab- 
lished by law must be really sufficient for the prevention of 


302 CRIMINOLOGY [$7 


new crimes on the part of the same individual, does it not 
logically follow that the proposed criterion is the only one 
which furnishes a practical solution? 

If, as Poletti would have us, we are to adopt the view that 
the phenomenon of crime is the result of a lack of adaptation 
to the legal relations of associated men, the remedy for which 
is to be sought in punishment,! why should we stop short of 
the consequences which such a point of departure necessarily 
involves? Why, when it comes to a criterion of punishment, 
should we not follow whither these consequences lead? Why, 
for example, discarding the death penalty, should we reduce all 
punishments to a single type — that of imprisonment for a 
term definitely fixed in advance? We are told that the 
human personality has rights which must be respected. 
Such an answer quite overlooks the fact that every punish- 
ment necessarily violates some of these rights. All such rights 
are circumscribed by arbitrary limits representing a compro- 
‘ mise between. individualism and the social necessities. But 
the word “individualism” has no meaning for criminal science. 
Society cannot defend itself without encroaching upon the 
rights of those individuals, who by committing crime have 
trampled under foot the rights of others. What then do we 
gain by trammeling social reaction? We are not directly 
concerned with finding a means whereby more or less suffering 
shall be inflicted: all we ask is the recognition of a minimum 
relation between the end and the means of attaining it. The 
whole matter reduces itself to the question of the true social 
necessity. To fix this, and fix it accurately — such is the prob- 
lem upon which all our efforts must be brought to bear. Any 
attempt to discover a criterion elsewhere is to engender 
errors — errors which, finding their way into legislation, are 
attended with disastrous results. 

In my judgment, therefore, the old criterion of proportion- 
ality must give way to that of idoneity. This criterion was 


1 Poletti, “Tl sentimento nella scienza del diritto penale,” pp. 126, 127 
(Udine, 1882). 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 303 


suggested by me under a slightly different form in one of my 
earlier works. To designate the active and constant perver- 
sity of the agent and the quantum of harm to be apprehended 
from him, — or in other words his capacity for crime, — I 
invented the term “temibilita,”” a word which has no equiva- 
lent either in French or English. Such a test is merely the 
logical complement of the theory that punishment is the 
weapon of social defense. If there is any element of strange- 
ness in the present situation, it consists, not, certainly, in the 
enouncement of the criterion in question, but rather in the 
fact that the advocates of the social defense theory have never 
thought to make use of it. For when it comes to establishing 
rules to govern the infliction of punishment, they have re- 
course, some to the objective gravity of the offense measured 
by the damage or the alarm, others again, to the force which 
impelled the criminal act, subject in both cases to the limita- 
tions imposed by the theory of moral responsibility. None of 
them regards it as worth while to examine in the various cases 
the intrinsic value of punishments with reference to the end 
sought to be attained. 
It is not easy, however, to overcome the prejudices which 
attach to certain words. The “merit” or “demerit” of human 
actions, the “‘justice” of rewards and punishments — these, 
it is charged, we would empty of every significance. But let 
it not be thought that we hold any such view. They are words 
which will always express something real — words which will 
endure as long as man is man. But what else is the merit or 
demerit of human actions but the indication of their depend- 
ence upon the character and the will of the individual, what- 
ever may have been the process of character formation and the 
derivation of the instincts and tendencies which go to make up 
the character, whatever may have been the causality of the 
motives which determine the will. There are certain moral 
qualities whose display is invariably regarded as meritorious 
by public opinion, despite the fact that they visibly depend 


1 “Dj un criterio positivo della penalita” (Naples, 1880). 


304 CRIMINOLOGY [$7 


upon the temperament, and hence are impossible of attribu- 
tion to the free choice of the individual. Such are courage, 
fortitude, coolness, self-possession. Is the soldier to be denied 
our plaudits for his deed of valor, because we know that 
courage is hereditary in his family? Are we to withhold our 
blame from the cowardly deserter, because we know that he 
is unable to resist the impulse of fear? It has been often said 
that some men by dint of constant efforts form their own char- 
acters. True, but whence came the strength of will which 
brought this to pass? Its origin can only be found in the nat- 
ural qualities of the psychic organism. But so far as phi- 
losophy is concerned, what does it matter whether the motive 
is plainly evident or remains hidden in obscurity, if we are 
convinced that a motive does in fact exist? 

The same may be said of what we are accustomed to call 
the “natural gifts.” Physical merits, such as strength, beauty, 
grace, talent, command admiration, while their opposites 
awaken repugnance and disgust. Now, the expression of 
admiration necessarily results in an increase, the expression 
of disgust or repugnance in a decrease, of happiness on the 
part of the persons who are its object, although these persons 
were not free to have or not to have the qualities or defects 
in question. The praise of virtuous and the blame of vicious 
acts really present the same case. If these acts are peculiarly 
our own, that is to say, if they are a derivation from our char- 
acter, from our individuality, — this is sufficient for the sur- 
rounding world to grant us that increase or diminution of 
happiness with which it is accustomed to requite acts which 
are manifestly devoid of moral merit. 

If the determining force is none other than the Ego, why 
should we refuse to recognize the praiseworthiness or blame- 
worthiness of a determined act?’ Is the Ego the determining 

1 “Tt remains then to be inquired if the moral sentiment cannot quite as 
well be applied in deciding whether to praise or blame a determined act. 
For my part, I believe that it can . . .” (Fr. Paulhan in review of my broch- 


ure: “Di un criterio positivo della penalit&” — Revue philosophique, July, 
1880). 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 305 


force, or is it not ?— this is the only inquiry made by public 
opinion — the only thing which it seeks to know in order to be- 
stow admiration or censure, reward or punishment. With the 
residue of the problem, namely, the reason why the Ego is what 
it is, it concerns itself but little. For us, it is true, the wicked, 
the imbruted, the vicious, the criminal, are no more able to 
transform themselves into persons of honesty and virtue, than 
is the crawling reptile to fly through the air. But the world 
itself no more than the criminal is master of its conduct: 
it is not free to give or withhold its sympathy or repugnance, 
its praise or its blame, its reward or its punishment. Neces- 
sity on the one side confronts necessity on the other. “‘ Merit” 
and “demerit ” have always relation to acts dependent 
upon the moral qualities. The words themselves require no 
change. All that is needed is a correct understanding of their 
meaning. 

But, it is insisted, to inflict suffering upon one who is merely 
the victim of his own depraved organism is to do injury to 
justice. Be it so: if the suffering inflicted is necessary for the 
preservation of society, let abstract justice take such offense 
as it may. The entire world affords a continual spectacle of 
similar injustices. Men suffer because of mental and physical 
defects, because of the lack of energy and intelligence, because 
of an unfortunate situation in life, which they are without 
power to change. The child who is deficient in memory or 
attention will never receive good marks at school. However 
great a source of mortification he may find it, he will always 
remain at the foot of his class. For the clerk of small intelli- 
gence there is no hope of preferment; sooner or later he may 
expect his dismissal. Must we call these injustices? Is the 
law itself unjust, when it condemns the children to poverty 
because of the debts of the father? Is elegance unjust when 
it shrinks from squalor? Do we speak of injustice when an 
audience hisses from the stage a tenor who cannot sing? — 
when the populace hoots an incompetent general? 

Life is never free from afflicting situations. What the rich 


306 CRIMINOLOGY [$7 


may enjoy to the poor is denied. On the one hand is the re- 
cluse, on the other the Don Juan. The smiles of some women 
are eagerly courted; their sisters have never attracted a pass- 
ing glance from the meanest of men. We see men full of health 
and vigor, and others who bear the burden of incurable ail- 
ments. The strong man dominates: the weak man obeys. 
Why must this be so? Why should not all men be equally 
strong, handsome, rich, attractive, and happy? Why, at 
least, is there not vouchsafed to all the possibility of enjoying 
our few years of earthly existence? Why should nature, so 
prodigal with my neighbor, deal so niggardly with me? 

But no such justice is found in creation. In one climate 
man freezes, in another he burns. There are planets sur- 
rounded with brilliant rings, others inundated with light and 
heat, others again, which are arid and desolate. Not even two 
leaves can be found exactly alike. Nature abhors equality. 
How then can we hope for equality in human society? 

Since the world knows no such thing as equality, there are 
bound to be human beings who are happy, and others who are 
not, — neither responsible for their lot. And such injustice 
is inevitable. Human justice cannot do otherwise than imitate 
the justice of nature, by excluding the unfit. But just as the 
care which a hospital patient receives is measured by stand- 
ards quite other than the degree of the possibility, existing at 
the time of contracting the disease, that he might have 
avoided its causes, so repression cannot be measured by the 
degree of the possibility, existing at the time of the criminal 
act, that the criminal might have avoided the causes of his 
crime. 

If this works injury to justice it is assuredly not the existing 
system of criminal law which offers anything better. Accord- 
ing impunity to irresistible impulses, it recognizes among the 
causes of irresponsibility neither innate degeneracy nor that 
corruption in childhood which stifles every virtuous sentiment, 
uproots every good instinct, and destroys the possibility of re- 
morse. Its hand falls upon idleness, regardless of whether it is 


§ 7] EXISTING THEORIES OF CRIMINAL LAW 307 


voluntary or involuntary. It imposes the same fine upon the 
man of wealth to whom the sum is a trifle as upon the poor 
wretch whose little hoard accumulated by long years of toil is 
swallowed up in the payment. It shuts up in the same jail 
the man for whom imprisonment is unimaginable torment, 
and the vagabond to whom it furnishes comfortable quarters 
and congenial company. It buries in the same penitentiary 
the man who has committed a crime solely for food and shelter 
and the man who finds himself in a living tomb. And this is 
said to be justice! Is justice of this sort not a thousand times 
farther away from the ideal than that which would result from 
our system? For, instead of requiring the judge to weigh what 
is to him an unknown quantity — the resistibility of the crim- 
inal impulse, we would have him estimate from experimental 
data the probability of future danger. Instead of advocating 
the infliction of a useless punishment proportioned to the hypo- 
thetical and indefinable quantity which represents the crim- 
inal’s free will, we propose that he adapt to the case in hand 
the preventive means which it requires, keeping strictly within 
the limits of social necessity. Under this method, the criminal 
will undergo the punishment which has been merited, not by a 
doubtful faculty of his mind, but by all that which constitutes 
his personality, namely, his psychic organism, his instincts, 
and his character. 

The aim is not to strike at misfortune, but to preserve society 
from new misfortunes whose advent is already foreshadowed. 
The human sentiment of sympathy intervenes to preserve 
the lives of offenders whose death is unnecessary, for whom 
there is yet the hope of adaptation to the social life. But in the 
case of the others — those men who by reason of a moral mon- 
strosity can never be aught but enemies of society — this 
sentiment is silent; none will lament their death. In this 
case, it is to be said with Shakespeare: 

‘Mercy but murders, pardoning those that kill”; 
or with Dante: 
1 “Romeo and Juliet,”’ Act. III, Scene I. 


308 CRIMINOLOGY [$8 
“Qui vive la pieté quando é ben morta.” ! 


The real injury is done to justice, when to prevent the crimes 
of others, there is put to death an offender whose complete 
perversity has not been established. The punishment which 
is inflicted for the sake of example is very likely to be unjust, 
as is seen in times of war or revolution or under despotic 
governments, whether of the individual or the mob. But pun- 
ishment cannot be other than just, when it has the single aim 
of disarming an enemy of society, when it is solely a means 
of direct and special prevention, when it is adapted to the 
individuality of the offender. It will be no doubt exemplary, 
but only by a natural effect which is not at all to influence its 
determination. Such is the true justice — the justice by which 
is tempered the maxim: “Salus populi suprema lex est.” 
None is to suffer either more or less than his individuality has 
merited. By this rule alone can we foreclose the possibility 
of exaggerations, whether of individualism or utilitarianism. 


§ 8. Criminal Attempt 


Supplementing the doctrines of responsibility and penal 
proportion in the existing criminal law are certain lesser the- 
ories which it now becomes necessary to examine. The first 
and most important of these is the theory of criminal attempt 
(“tentative”) —a theory which is made to adjust itself to 
the principles of the classical school only with considerable 
difficulty. 

Objective Doctrines of Attempt.—In Germany and Italy 
there exists an objective doctrine of attempt, under which 
the attempt is punishable only when the intent has been in 
part carried out. In this view, therefore, the attempt is simply 
a fragment of the crime meant to be committed and, like the 


1 [Here pity most doth show herself alive, 
When she is dead.” 
“Divina Commedia,” Book I, Canto XX, 26, 27 (Cary). — 
TRANsL.] 


§ 8] EXISTING THEORIES OF CRIMINAL LAW 309 


latter, has an objective side (Osenbriiggen; Geyer). There is 
also a more recent doctrine which defines attempt as “an 
act adapted to produce the intended result and possessing the 
material character of a crime” (Cohn).' In France and Italy 
it is required that the criminal intent be manifested by acts 
directed to its accomplishment (“actes d’exécution”’) which 
are intrinsically capable of bringing about the crime. This 
consequently exempts from punishment cases of attempt in 
which the agent has mistakenly employed means which are 
insufficient or inapt to produce the desired result. Moreover, 
the distinction is made between the absolute insufficiency and 
the relative insufficiency of the means. It is acknowledged 
that there is criminal attempt when the means would in 
general have proved sufficient, although they have turned out 
not to be so in the particular case (Carrara). The further 
conclusion is reached that when the agent, although selecting 
means which would have proved effectual, yet by reason of 
some circumstance of which he is in ignorance, actually em- 
ploys other means which proved insufficient, the case is not one 
of punishable attempt. Thus if A, believing that he is aiming 
a loaded gun at X, pulls the trigger with intent to kill X, his 
act is not punishable, if it transpires that the weapon was not 
loaded. The same would be true if, unknown to A, the mech- 
anism of the piece had been so out of order as to prevent its 
discharge. 

These views are in keeping with the principle that attempt 
is a partial carrying out of the intent, or, as it may otherwise 
be expressed, a material part of the fact which would have 
constituted the crime. For, it is contended, the law cannot 
take cognizance of acts of no immanent hurtfulness. It is of 
little moment that the agent is immoral or even danger- 
ous: the thing to be looked to is whether the danger was 
inherent in the act. Crime cannot exist without an act 


1 See articles in the Zeitschrift fiir die gesammte Strafrechtswissenschaft 
for 1881 and the Gerichtssaal for 1880, where this subject is discussed with 
much learning and refinement. 


310 CRIMINOLOGY [$8 


of criminal efficacy.' “Punishment is directed not to the 
criminality of the agent displayed by his external act but to 
the fact accompanied by the criminality of the agent” 
(Carrara). 

The True Theory of Attempt. — The true rule, in our opin- 
ion, should be exactly the opposite. In this respect the diver- 
gence between our system and that of the jurists could not be 
more marked. The view of criminal attempt which we regard 
as the correct one, closely approaches the so-called subjective 
theory advocated by many German writers, notably by Herz, 
Schwarze, Von Buri, and Von Liszt. According to the teach- 
ing of the Roman law, the intent alone is of value in determin- 
ing the question of attempt: the material fact is without signifi- 
cance. When no damage has been occasioned, there is nothing 
to strike at but the will. That this will has made use of means 
which presented no probability of success is a matter of small 
importance. Moreover, it is impossible to appraise simultane- 
ously both the will and the fact, for they come together only 
in the accomplishment of the act. In the attempt they are 
separate, and the objective quantity, that is to say, the accom- 
plished part of the fact, can mean nothing to us as long as the 
design has not been carried out. The fact has no bearing upon 
the case except as an expression of the agent’s will. Now, 
the very circumstance that the intended result was not pro- 
duced always indicates an impossibility either specific or 
relative. It serves no purpose to inquire if the means which the 
agent believed to be sufficient, would have been so regarded 
by others. A man walking toward a given point, let us say, 
finds further progress impossible because of the fall of a bridge. 
From the moment he started until he reached this point, all 
his acts have been useless. And yet so far as he knew, so far as 
any one knew who had not been apprised of the accident, the 
acts in question were the directest means of reaching his 
destination. On the other hand, from the standpoint of one 


1 Geyer, “Ueber die sogenannten untauglichen Versuchshandlungen” 
(Zeitschrift fiir die gesammte Strafrechtswissenschaft, Vol. I, p. 30. 


§ 8] EXISTING THEORIES OF CRIMINAL LAW 311 


who knew of the obstruction, what he did was futile: his acts 
represented an insufficient, means. 

This accomplished part of a design is completely devoid 
of objective value. ‘‘Take the case of a traveller who finds 
himself, tortured by thirst, in the midst of a trackless desert. 
All at once he descries far off a low hill crowned with verdure 
and dotted with human habitations. If, notwithstanding his 
utmost efforts, his physical forces will not enable him to reach 
more than half-way to this place of safety, he must inevitably 
perish, unless some one comes to his aid. Traversing half the 
distance which separated him from the oasis has not quenched 
half his thirst.” ! 

Furthermore, there is no human act which is absolutely in- 
capable of producing a given result, none, on the other hand, 
which will necessarily bring about that result. “An act can 
never be the cause of an effect which has not come to pass. 
The fact that the means employed by the agent have failed 
to produce the intended effect, of itself demonstrates the 
insufficiency of the means to accomplish the design. It may 
be said, generally speaking, that there are no means absolutely 
insufficient under all circumstances, just as there are no means 
absolutely sufficient. . . . Every aborting of a design is the 
fault of the agent, who has failed to foresee the circumstances 
which intervened to prevent its accomplishment. What then 
do we gain by seeking to differentiate the circumstances which 
have operated to deceive the agent? Why should it be neces- 
sary to ascertain, for example, if the obstacle existed from the 
outset, if it intervened during the course of the action, if 
the agent was mistaken in estimating his own strength and 
abilities, if he neglected to examine, with respect to species 
and quantity, the means of which he made use, or if he failed 
to select the instrumentality most adapted or apply it in the 
most effectual manner?” ? 


1 Von Buri, “ Versuch und Causalitit” (Gerichtssaal, Vol. XXXII, Book 5, 
pp. 367, 368, — Stuttgart, 1880). 
2 Decree of the Supreme Court of the German Empire (Reichsgericht) 


312 CRIMINOLOGY [$8 


This subjective theory of attempt is however rejected by the 
jurists of France and Italy and even in Germany encounters 
bitter opposition. But as already suggested, it is the only 
theory which has any points of contact with our own. 

Once punishment is measured by the perversity of the crim- 
inal, the question of attempt by insufficient means completely 
disappears. If the attempt, quite as much as the executed 
crime, suffices to reveal the criminality of the agent, there can 
be no difference between the two. Regardless of the suffi- 
ciency or insufficiency of the means, what must be done is, 
first, to ascertain whether the criminal will has been displayed 
in an unmistakable manner, and secondly, to determine if this 
criminal will is dangerous. The second branch of the inquiry 
is necessary, because perversity which cannot be translated 
into action requires no repression on the part of society. 

In this last respect, there is involved a qualification of the 
subjective theory. For here, in some cases, examination of 
the means employed will not be without its use. The choice 
of means may serve to demonstrate the intelligence or stu- 
pidity of the agent. Such would be the case where A thinks 
to poison X by the use of sugar or table salt, or to shoot him 
with a gun which he, A, knows not to be loaded or else by 
firing it from a wholly impossible distance. No crime would 
exist in these instances, not because of the insufficiency of the 
means, but because of the ineptitude (“incapacita”; “inapti- 
tude’’) of the agent, which this insufficiency establishes. The 
agent’s criminal desires are nothing more than velleities. In 
point of fact he is harmless. In such case, therefore, penal 
repression would be uncalled for.! 

But a very different case is presented if A in his attempt 
to poison X uses sugar which, on the representation of the 


24 May, 1880: (Rechtsprechung des Deutschen Reichsgerichts, Vol. I, p. 
819 et seq.), quoted by Geyer in article before cited. See also Von Liszt, “Das 
fehlgeschlagene Delikt and die Cohn’sche Versuchstheorie” (Zeitschrift, etc. 
before cited, p. 103). 

1 The former codes of Hanover, Brunswick, Nassau, and Baden, provided 
that attempt with insufficient means should not be punishable, when the choice 
of such means was the result of superstition or imbecility. 


§ 8] EXISTING THEORIES OF CRIMINAL LAW 313 


chemist from whom he bought it, he believes to be arsenic. 
So too, the case is different if the gun with which A seeks to 
take the life of X, had been loaded by A himself, but unknown 
to him had been unloaded by another; or again, if instead of 
an impossible distance, the distance at which he fired at X 
had chanced to be merely a trifle beyond the range of any 
species of fire-arm. The agent’s mistake does not make him 
any the less a criminal, since it in nowise proves his ineptitude. 
The act in itself, we may concede, is not dangerous. But this 
fact does not prevent the act itself from revealing the danger. 
A similar situation exists when the means are such that their 
insufficiency could not have been known without special 
study, as, e. g., a mistake in the quality or dose of a poison. 
An error of this character does not in any way demonstrate 
the agent’s ineptitude. The fact of a false calculation cannot 
render a poisoner harmless. 

With respect to youthful offenders, it is somewhat more 
difficult to arrive at a rule which will fit all cases. Frequently 
the child’s ignorance of matters of the commonest knowledge 
is not sufficient to establish his harmlessness. He may be a 
born criminal and yet his maladroitness may be such that if 
he were older it would be reason for declaring him harmless. 
All we need to know is whether he is possessed of discernment 
and resolution. If so, this is enough to convince us that when 
he outgrows his ignorance, he will become an object of danger. 
In spite of the differences arising from the varying facts of 
particular cases, every difficulty may be overcome by the aid 
of this general rule: “Whether or not ineptitude exists on the 
part of the agent is to be determined not alone from the 
examination of the means employed, but by the fact taken in 
its entirety.” For the choice of means is important only when 
it shows the harmlessness of the agent. It is a quantity with- 
out absolute value. Adoption of insufficient means may be 
quite compatible with an intelligent and persevering will.’ 


1 On this subject see my brochure: “Il tentativo criminoso con mezzi 
inidonei” (Turin, Loescher, 1882). 


314 CRIMINOLOGY [$8 


The Question of Punishing Attempt. — Having thus deter- 
mined the cases wherein attempt is punishable, we may now 
proceed to consider the measure in which punishment is to 
be applied. The criminalists of a former day, as we know, 
have marked out for us the several steps of the “iter crim- 
inis.” They distinguished the acts which were merely those 
of preparation (‘‘actes simplement préparatoires’’), the 
“conatus remotus,” and the attempt properly so called 
(“tentative proprement dite”). More recently there has been 
added the frustrated crime (“délit manqué”’). The first two 
are punishable as a general rule; the last two only in special 
eases. And yet nearly all the modern penal codes concur in 
punishing the attempt (“tentative’’) and the frustrated crime 
(“délit manqué’’) with much less severity than the executed 
crime. The French Code is perhaps the only one which 
treats every attempt to commit crime as the crime itself. 
But this provision has been sharply criticized by legal theo- 
rists and in practice is constantly evaded by resorting to 
extenuating circumstances as a means of reducing the punish- 
ment. It is supposed that the punishment should vary in 
severity according to the degree of forwardness in the execu- 
tion of the design. Accordingly, the Italian Code, strictly 
logical in this regard, provides a much heavier punishment 
for the frustrated crime (“‘délit manqué’’) than for simple 
attempt (“tentative’’). 

The reason assigned for the gradation in question is that in 
the attempt (“tentative”), since the agent had not arrived 
at the end of the “iter criminis,” there is a possibility that 
he might have desisted before doing the final act. But this 
is a possibility insusceptible of determination, because the 
agent has been halted midway by an intervening obstacle. 
In case of frustrated crime (“délit manqué’’) it is even more 
difficult to justify mitigation of punishment. For here there 
is no room for doubt as to the resoluteness of purpose, inas- 
much as the agent has done everything necessary to carry his 


design into execution. ‘iatet 


$8] EXISTING THEORIES OF CRIMINAL LAW 315 


“But,” explains Rossi, “it is impossible to ignore either the 
distinction, natural to the human mind, between reparable and 
irreparable injury, or the tendency to judge the importance of 
human actions by their outcome.” ! This, as we view it, is a 
consideration entitled to no weight. The different importance 
accorded the success or failure of a project, depends solely 
upon the sensation of pain in the one case or relief in the other. 
When a crime has been committed, we sympathetically 
participate in the suffering of our fellow-being who is its vic- 
tim. When, on the other hand, the commission of the crime 
has failed, relief succeeds anxiety in the mind of the person 
at whom the aggression is aimed, and in this sentiment we 
likewise share. If we estimate the importance of the fact by 
the dangerousness of the agent, the question of whether the 
crime has been accomplished or has been thwarted by some 
intervening circumstance, becomes relevant in but a single 
instance, namely, when this circumstance is one which could 
easily have been foreseen by the agent. Not having foreseen 
it, the agent for this reason ceases to be a true criminal and 
an object of danger. Nothing else, in our opinion, need be 
looked at. The distinction between the several stages in the 
acts of commission, so far as it is sought to be used as a 
standard for measuring punishment, seems wholly without 
value. 

Nor can I regard as well taken the criticism which another 
aspect of the situation draws from Tarde.” He is uncon- 
cerned, he premises, with the “petty logic” of the jurists and 
is of the opinion that, even unexecuted, the attempt or sug- 
gestion which reveals a criminal propensity, proclaims a 
danger to society. But he goes on to say that the peril is 
increased two-fold if the crime has in fact been executed, since 
to the nascent criminal habitude there is joined the nascent 
criminal example, both objects of repression. For my part, I 


1 Rossi, op. cit., Book II, c. xxxm. 
2 Tarde, “ Positivisme et pénalité” (“ Archives d’ Anthropologie criminelle,” 
Vol. I, No. 7, pp. 35-37, — Paris-Lyons, 1887). 


316 CRIMINOLOGY [$8 


am unable to see how a theft accompanied by a frustrated 
murder (“assassinat manqué”’) can ever serve as a discourag- 
ing example to criminals, if the agent has in fact been able 
to attain his end, namely, that of robbing his victim. 

The victim, let us say, has survived his wounds or escaped 
by the merest accident. How can either of these facts operate 
to lessen the force of the criminal example? It may be sug- 
gested that discovery and identification of the assailant are 
thereby facilitated. But this circumstance will have anything 
but a dissuasive effect upon other evil-doers. It will merely 
teach them that their safety lies in striking more effectually 
and insuring their victims’ death. Such is the invariable 
result in like cases. The method which has been hitherto 
employed will always be dropped when they learn of a better. 
The experience of the malefactor who has fallen into the hands 
of the police is not lost upon the apprentices of crime who 
sit on the spectators’ benches in the Court of Assizes. Far 
from being induced to give up their trade, they resolve to profit 
by the mistakes of their predecessor. Tarde admits, however, 
that his distinction “does not furnish the true reason why it is 
difficult to make judges and juries see the identity, insisted 
upon by Garofalo and embodied in many of the penal codes, 
between the consummated offense and the attempt to commit 
that same offense, which has been frustrated by accident.” 
The true reason, according to Tarde,is very nearly that 
assigned by Rossi, namely: “the unconscious feeling common 
to all, of the major importance which must be accorded to the 
accidental and casual.” We are accustomed “to admit that 
nothing so legitimately belongs to a man as his good or ill 
fortune. When the man who has attempted to dynamite a 
railroad train is brought to trial, every one experiences the 
thought that it was a fortunate thing for him, as well as for his 
intended victims, that the fuse went out before the sparks 
had reached the explosive.”” Our author, it is true, does not 
appear to justify this popular feeling. “It makes no differ- 
ence,” he continues, “that the criminality of this offender is 


§ 8] EXISTING THEORIES OF CRIMINAL LAW 317 


the same as if he had accomplished his design; his good for- 
tune is his indisputable property in the eyes of all. It is 
vaguely felt, — by virtue of a sort of symmetry, constant 
although unconscious, unjustifiable but ineradicable, — that 
to deny him this species of property would logically lead to a 
denial of most of the established rights of property. This is 
perhaps absurd, but the irrational is strongly rooted even in 
the essence of our reason.” 

Such indubitably is the case and will always remain the 
case, so long as criminal judgments continueto be popular 
judgments. It is not upon an unjustifiable, absurd, and irra- 
tional sentiment that we should found a system of repression 
which looks to the social defense. “A jury,” we are told, 
“will always display leniency toward the author of an unsuc- 
cessful attempt to commit murder or theft.” It does not 
follow, however, that the law must conform itself to this irra- 
tional tendency. What is needed is the substitution of a 
rational judgment for that which is dependent upon the 
verdict of the jury. Let us have judges who possess the req- 
uisite fitness to determine the fact of the criminal’s perver- 
sity —to say whether or not he is a continuing source of 
danger; let logic and consistency characterize their decisions; 
let them inflict such punishment as is adequate, not merely 
for the purpose of allaying the public alarm, but for that of 
really preventing the threatened harm. Then we shall see 
what leniency will be shown to the offender whose attempt 
to murder or steal the merest accident has thwarted. 

Our conclusion, therefore, cannot be other than this, that 
an attempt to commit crime must be treated as the crime it- 
self when the same danger proceeds from the agent. It will 
always be possible to ascertain whether the agent is really a 
criminal or whether, in spite of his display of criminal inten- 
tion, the fact of his ineptitude must be regarded as established. 
In the case of frustrated crime (“‘délit manqué”’), the inquiry, 
then, will be directed solely to discovering if the manner in 
which he has set about the execution of his design, does not 


318 CRIMINOLOGY [$8 


reveal complete impotence for harm, and this, as before ex- 
plained, irrespective of the intrinsic sufficiency of the means 
adopted. In the case of attempt proper (‘tentative’), 
it must further be inquired whether or not it appears that in 
the absence of the unforeseen circumstance, the agent would 
have voluntarily desisted before doing the final act. The 
punishment, instead of being reduced for every such case, 
should be applied in the measure demanded by the consum- 
mated crime, or else dispensed with entirely, according as 
the judge shall find that the criminal resolution was or was 
not irrevocable. Even acts which are merely those of prepa- 
ration (“actes simplement préparatoires’’?) may sometimes 
afford a basis for the like determination. Why, then, should 
not such acts be considered in the light of a true attempt? 
What possible difference can it make that one or more stages 
yet remain to be traversed, if we are convinced that the 
agent, if unhindered, would have persisted to the end? 
Then, too, it has been admitted by many of the classical 
jurists that acts of preparation may become punishable as 
true attempts (Ortolan, Geyer, Rossi). Moreover, in the 
Roman law an act of preparation might assume the signifi- 
cance of a “conatus remotus”: “cum quis, exempli gratia, 
gladium strinxerit.” 

The lex Cornelia sanctioned the infliction of capital punish- 
ment upon the following offenders: “Qui furti faciendi causa, 
noctu, cum telo ambulaverit”’; “Qui in alienum ccenaculum 
se dirigunt, furandi animo”; “Is qui cum telo ambulaverit, 
hominis necandi causa”; “Qui, cum vellet occidere, id 
casu aliquo perpetrare non potuerit”; “Qui emit venenum 
ut patri daret, quamvis non potuerit dare.” Now, it is plain 
that in every one of these instances, the criminal is still very 
far from the final act of execution. Nevertheless, there has 
been unequivocal manifestation of his resolution and aptitude. 
His acts are convincing evidence that if he had not been pre- 
vented by external force he would have accomplished the in- 
tended crime. Why, then, should we distinguish between 


§ 8] EXISTING THEORIES OF CRIMINAL LAW 319 


a direct and an indirect act of execution? Why should the 
extent of the punishment be influenced by the nearness or 
remoteness of the terminal act? This was not the method 
of the Roman law: “Pari sorte leges scelus quam sceleris 
puniunt voluntatem.” 

When we have to do with an act which is simply one of 
preparation, there are two things to be seen: first, whether the 
object of the agent might have been something other than the 
commission of the crime, or whether the fact of his criminal 
resolution is beyond dispute, and secondly, if there is no doubt 
that the act was directed to a criminal end, whether it is con- 
clusively shown that the agent would have persisted until the 
crime was accomplished. In the case of true attempt, the 
second inquiry is the only one necessary. 

But, we may be asked, how are we to attain the requisite 
degree of definiteness in our conclusions? Hard as it may be to 
formulate any general rules, the particular case will present no 
great difficulties. Suppose, for example, that near the door 
of a well-furnished dwelling which stands some distance away 
from any other, two professional housebreakers are caught 
hiding, with burglars’ tools in their possession. Can there be 
here any reasonable doubt of the criminal intent? If common 
sense calls this an attempt to commit burglary, why should 
the law apply to it any different name? Given a professional 
criminal and an act necessary in the particular species of crime 
which forms his specialty, there can be no doubt as to the in- 
tent. This is of course an hypothesis, but in no department of 
science is a principle deemed worthless solely because hypothe- 
sis is its basis. We have no right to reject the principle until 
it is shown that the hypothesis itself is wholly unsound or at 
least ignores a contrary probability important enough to be 
taken into account. 

In acts which are simply those of preparation the criminal 
resolution as a rule is difficult to prove. Hence, in this case 
as well as in every case of “conatus remotus,”’ it becomes nec- 
essary to subject the agent to examination. If from this we 


320 CRIMINOLOGY [$8 


discover in him an instinctive criminal who is totally devoid 
of altruistic sentiments, or who is the prey of covetous desires 
or unrestrained passion, or who is actuated by such a degree 
of lasciviousness as renders him totally insensible either to 
punishment or public opinion, then we may be certain, as 
far as it is humanly possible to be so, that he would not have 
voluntarily relinquished his purpose: the danger is there quite 
as much as if the crime had been accomplished. To make 
any distinction in respect of repressive measures between the 
two cases would be out of the question. If, on the other hand, 
our examination discloses that the agent was under the sway 
of a transitory influence which in all likelihood will never 
repeat itself, that in spite of his inferior morality, he is not 
entirely destitute of moral sense, then the possibility may be 
admitted that at some intermediate stage of his criminal 
enterprise, the resistance of his good instincts or the fear of 
discovery and punishment would have caused him to desist 
of his own accord. For this reason the danger, although 
possible, is not probable, and a mere possibility gives society 
no right to strike. 

In treating attempt by insufficient means as always un- 
punishable, the existing law is irrational; in punishing the 
attempt with less severity than the executed crime, it is 
absurd; in never punishing acts of preparation and always 
punishing attempt proper, it is unjust. These results repre- 
sent a false progress — a progress detrimental to social de- 
fense. The positivist doctrine, which in this instance comes 
much nearer to the Roman law than does that of the modern 
jurists, reaches very different conclusions. It holds that 
attempt is punishable notwithstanding the insufficiency of 
the means, provided that the choice of these does not estab- 
lish the fact of the agent’s ineptitude; that in certain cases 
acts of preparation may be regarded as a true attempt (“ten- 
tative”); that the crime which has been frustrated by acci- 
dent (““manqué par hasard”) ought to be punished as if the 
criminal had accomplished his purpose; and that the more 


§ 9] EXISTING THEORIES OF CRIMINAL LAW 321 


remote attempt ought in certain cases to be punished as the 
crime itself, in others, not at all. 


§ 9. Criminal Participation 


The next theory to be looked at is that of criminal participa- 
tion (“complicité”’).1_ It cannot be gainsaid that in this re- 
spect a distinct step in advance is marked by the principle 
that the personal circumstances (“‘circonstances personnelles”’) 
ought not to be imputed to the accomplice, while the material 
circumstances (“circonstances matérielles’’) ought so to be 
imputed only in so far as the accomplice is chargeable with 
knowledge thereof.” But while this effects a difference in the 


1 [The expression ‘complicité,’ in a strictly legal sense, indicates only the 
secondary participation in the offense, but used in a general sense it denotes 
every participation, principal or secondary” (Garraud, “‘Traité de droit 
pénal frangais,”’ II, p. 600, note 2). The Anglo-American classification of 
participants into principals of the first and second degrees and accessories 
before and after the fact has no counterpart in Continental law. The French 
law divides all the participants into the two classes of principal authors and 
accomplices (Art. 59, Penal Code; Chauveau and Hélie, “Théorie du code 
pénal,” I, pp. 409, 410). In the Italian Code of 1889, three classes are recog- 
nized, viz., principal authors, principal instigators, and accomplices (Art. 63; 
Lacointa, “Code pénal d’Italie,” pp. Ivii, lviii). — Transt.] 

2 [The circumstances here referred to are those which serve to aggravate 
the offense and bring about an increase in the degree of punishment. By 
“personal circumstances” also called “subjective” or “intrinsic” is meant “in 
general such circumstances as relate to the understanding, the will, the mental 
condition, the natural, legal, or contractual relations which exist between the 
accused and the injured person. . . .” (Lacointa, “Code pénal d’Italie,”’ pp. 
48, 49, note). “Material circumstances” (frequently referred to as “objective” 
“real” or “extrinsic’’) are such as arise out of the body of the crime; such, in 
other words, as inhere in the acts themselves, preparatory, intermediate, or final 
([bid.; Garraud, “Traité de droit pénal frangais,” II, p. 723). The distinction 
between the two sets of circumstances occupies an important place in the Con- 
tinental law of criminal participation, as affecting the determination of the 
degree of guilt of the several offenders. For example: a servant commits 
a theft in the household of his master. The fact of his service is a circumstance 
of aggravation and, because arising out of the personal relationship of master 
and servant, a personal circumstance. This circumstance being taken into 
consideration he will be deemed guilty of domestic theft (“vol domestique”) 
and thus incur a heavier punishment than provided for simple theft (“vol 
simple”). But suppose that he was aided by an accomplice who was not in 
the service of the master. The question then arises whether the personal 
circumstance which serves to aggravate the servant’s offense can be imputed 
to the accomplice, so that he, too, can be found guilty of domestic theft. 


322 CRIMINOLOGY [$9 


degree of punishment, we would go still further. We are un- 
able to understand why the same kind of punishment should 
be applied to both principal and accomplice when they cannot 
be ranked in the same class of criminals. The man who for 
the purpose of avenging an atrocious injury which his family 
has sustained at the hands of another, hires a bravo to kill 
the wrong-doer, is a very different sort of criminal from the 
paid murderer who actually does the deed. Why should the 
same kind of punishment be the portion of both? Why, 
again, should the same sort of treatment be meted out to the 
professional thief as to the novice whom he has influenced 
to participate in the criminal act? 

Another principle of the juridical school, and one which we 
believe to be wholly unsound, is this: where, for example, A 
employs X to commit a crime and X voluntarily relinquishes 
the undertaking, A is exempt from punishment notwith- 
standing X’s acceptance of the employment (“mandat”’). 
“For,” says Rossi, “no process of reasoning can establish the 
existence of something not yet begun, and it would be unjust 
as well as irrational to hold a man guilty of a crime which 
never had any existence.””! Nevertheless, the same author 
concedes that taken by itself the fact of employing another 
to commit a crime might in certain cases be considered as a 
special offense and punished accordingly.” 


Again: a theft is committed with violence. The fact of the violence is an 
aggravating circumstance, and because it is inherent in the crime itself, a 
material or objective circumstance. Is then the accomplice who did not par- 
ticipate in the violence to be affected by this material circumstance of aggra- 
vation and punished for aggravated instead of simple theft? Under the prin- 
ciple referred to in the text, the accomplice in the first case would be guilty 
merely of simple theft, because the aggravating circumstance, being personal 
to the servant, could not be imputed to the accomplice. In the second case, 
the accomplice would be guilty of aggravated theft, only if he had knowingly 
permitted the violence. 

Circumstances of excuse and extenuation admit of a like division. The 
inquiry in this instance is whether a given circumstance of excuse or exten- 
uation, plainly existing in favor of one of the participants, will inure to the 
benefit of his co-participant. — TRANSL] 

1 Rossi, op. cit., Book I, c. xxxvt. 

2 The Sardinian Penal Code of 1859 treated the case in question (“mandat 


§ 10] EXISTING THEORIES OF CRIMINAL LAW 323 


In my judgment, the true solution of the problem lies in the 
application of the same principles with which we would govern 
the case of attempt by insufficient means. The agent (“man- 
dataire’’) who weakens and desists, represents exactly the 
insufficient means. What must then be ascertained is whether 
the criminal had good reason to believe that his agent would 
prove an effectual instrument for the accomplishment of the 
crime. Suppose that in one of those unhappy regions where 
the trade of hired assassin still exists, a man has engaged a 
notorious member of this guild to commit a murder. The 
task in hand is an easy one, the risk almost nothing. If the 
bargain has been struck and the money paid down, must it 
not be granted that the employer has left nothing undone? 
So far as his criminality is concerned, what can it matter if 
the attempt has failed, or even if the agent has taken no step 
toward the execution of the crime? Can my innocence or 
guilt be made to depend upon the act or omission of another? 
There is nothing left for me to do in order that crime may re- 
sult, and yet what I have done may be all or nothing, contin- 
gent upon what another, without my knowledge, shall decide! 
Such a result indicates how the views of the idealists have 
really brought about the materialization of criminal law. 
In striking contrast is the utilitarianism of the positive 
school which, by directing the law-maker’s attention to the 
criminal rather than to the crime and thus according a greater 
importance to the element of intent, conduces to the elevation 
and dignity of this science. 


§ 10. Plurality of Offenses 


A further matter deserving notice in the present connection 
is the plurality of offenses by the same individual (‘‘concours 
de plusieurs délits””). This is a situation to be distinguished 
from that of recidivism, since, unlike the latter, it does not 
inexécuté’’) as an attempt to commit crime (Art. 99). The Penal Code of the 


German Empire, the Italian Code of 1889, and others are silent on this 
subject. 


324 CRIMINOLOGY [$ 10 


suppose the fact of a previous conviction. In the case of re- 
cidivism the offender has undergone trial and sentence and 
thereafter has committed a new crime. According to the pre- 
vailing doctrine, the fact that the criminal has been warned 
by one or more prior convictions and, notwithstanding, has 
persisted in defying the law, makes his guilt greater in the case 
of recidivism than in the present case. Since society has been 
unable to find the requisite means of repression, it ascribes the 
fault to the criminal: it is just as if a physician were to hold 
his patient responsible for the harmful effect of an improperly 
prescribed or badly compounded medicine. On the other hand, 
where there is repetition without previous conviction, the same 
school advocates lenity to the offender, arguing, not without 
a certain unconscious humor, that because he has not had the 
warning of a previous punishment, less guilt attaches to his 
repeated infractions of the law. 

Such a criterion might do to regulate the discipline of an 
infant school, but applied in the field of natural criminality, 
it is nothing short of farcical. 

Under the same theory, which finds acceptance in a majority 
of the codes, the judge, in a case of repetition without recidi- 
vism, is without power to vary the nature of the punishment. 
However many the swindles or frauds perpetrated by the 
criminal before him, he may impose only so many correctional 
punishments, keeping in each instance within the limits 
assigned by law for a single offense. Upon the criminal who 
has committed three or four murders he has no power to pass 
a sentence of life-imprisonment, if no one of the offenses in 
question is punishable by more than a term of years. In 
short, the law obliges him to treat the habitual criminal in 
nowise differently from the first offender. A striking commen- 
tary this on the wisdom of the doctrine. 

It seems hardly necessary to specify here the totally differ- 
ent conclusions to which our system would lead. It is our 
belief that the man who has committed a number of unpre- 
meditated homicides may in certain cases be still more per- 


§ 11] EXISTING THEORIES OF CRIMINAL LAW 325 


verted, still more dangerous than the author of a single 
premeditated homicide. We are unable to see, therefore, why 
the former should always be punished more leniently than the 
latter. In our opinion, too, there may well be ground for 
declaring the professional sharper an habitual offender despite 
the fact that he has never undergone previous conviction. 
Why, then, should so much importance be attached to the 
fact of a previous conviction, if it be shown that we have to 
do with an habitual or incorrigible malefactor? The only 
reason is the prejudice which exists in favor of the supposed 
reformatory effect of punishment. 


§ ll. Recidivism 


More astonishing still is the circumstance that certain 
writers of the strictly juridical school have begun to attack 
the distinctive punishment of recidivists, or at least to contend 
that the fact of recidivism ought to have no influence upon 
the kind of punishment imposed. “The fact of recidivism 
gives the law-maker no right to substitute a criminal punish- 
ment for a correctional punishment, or imprisonment for life 
in lieu of imprisonment for a term of years, still less to sanc- 
tion the death penalty, for this fact can in nowise change the 
nature of the punishable act.’”’! The order of reasoning is 
ever the same — always irreconcilable with our own. What 
we are concerned with is not to see whether recidivism changes 
the nature of the act, but whether it demands the transference 
of the agent from one class of criminals to another. Mere 
common sense told men this in past centuries before the 
juridical theorists had exaggerated the importance of the 
objective side of crime.” 


1 Haus, “Principes du code pénal,” c. m1, § 624. 

? In the Middle Ages, the second recidivation was ground for extreme pun- 
ishment, even though the offense itself was not a serious one: “Si tamen 
reiteratur tertia vice, potest pro tribus furtis, quamvis minimis, pcena mortis 
imponi” (Farinacci, Praxis et th. crim., Questio XXIII). Under Henry VIII 
and Elizabeth, the death penalty was inflicted upon vagabonds who recidi- 
vated. The Code Napoléon sanctioned capital punishment in the case of 


326 CRIMINOLOGY [$11 


But the reformers go still further. Not only are they op- 
posed to changing the nature of the punishment, but they 
also insist that increase in the degree of the punishment is 
admissible only in the case of special recidivism, that is to 
say, where the second offense is identical in kind with the first. 
This theory has gained ascendancy in Germany, where the 
penal code is entirely silent on the question of recidivism, 
save in the case of repeated offenses against property. It 
has all but prevailed in the Italian Code of 1889, under which 
there are no measures of severity prescribed for the recidivist, 
except where his new offense is of the same kind as his past. 

To our way of thinking, on the contrary, the fact that a 
man who has committed theft, later commits a murder, fur- 
nishes conclusive evidence that he does not possess the senti- 
ment of pity any more than he does that of probity, or in 
other words, that he is destitute of every fundamental altru- 
istic instinct. It follows, therefore, that he is utterly lacking 
in sociability and that in consequence his elimination should 
be absolute. This is not to deny, however, that there are cases 
where recidivation in a different kind of crime proves little 
or nothing. But the existence of such cases only goes to show 
the impossibility of any “a priori” laying down of rules, 
and the necessity of recognizing many distinctions. Recidi- 
vism, special or general, is for us merely one of the elements 
which determine the classification of offenders, but still one 
of the most important and useful of these elements. 

In the system which we propose, it is inconceivable that the 
punishment applied to the recidivist should be of the same 
nature as that reserved for the first offender. For the fact 
of the new crime is the best proof in the world that the means 
employed in the former case has failed to attain its end. Up 
to a certain point, I can readily understand the propriety of a 
second experiment which materially increases the quantum 


recidivists who had committed a crime punishable with penal servitude 
(“travaux forcés”’) for life. 

1 See my paper on the subject of recidivism in the Actes du Congrés 
pénitentiaire de Paris, 1896. 


§ 11] EXISTING THEORIES OF CRIMINAL LAW 327 


of the remedy, but what would we say of a physician who, 
after a second failure, obstinately clings to his original method, 
without trying any of the other therapeutic measures recom- 
mended by medical science for the case in hand? 

Finally, it is laid down by the jurists that legal recidivism 
exists only when the second offense occurs within a fixed 
period of time after the first conviction — five or ten years 
for example, depending upon whether the offense is a felony 
(“crime”’) or misdemeanor (“délit”?). For, as has been said, 
the fact of good behavior for many years makes evident the 
efficacy of repression.' We have here one of these legal fic- 
tions which always have been the subject of deplorable abuse. 
It is supposed that the offenses which have been brought to 
light and whose perpetrators have undergone trial and con- 
viction, are the only offenses which have been committed, 
whereas the fact is that they constitute but a slender part of 
the whole number. Take the case of a sharper who has al- 
ready one conviction to his score and yet cannot be legally 
declared a recidivist, because of the elapse of five years since 
its date. Who can tell us how many crimes of fraud are ac- 
tually to be laid to the charge of this man? 

Suppose, however, we lend credence to this fiction. Sup- 
pose that the offender’s behavior has in fact been good for 
five or ten years. If, then, after such an interval, the same 
individual relapses into crime of the same description, does not 
this fact furnish strong indication of firmly rooted criminal 
instincts which, it may be, are rarely manifested, and yet 
await but a favorable occasion to come to light? The evil 
tendency suddenly reappears when all might think that it has 
disappeared forever. Must we then render thanks to the of- 
fender for refraining from crime during these years? Must 
we by way of recompense for this boon, ignore the existence 
of the element of criminality found in his previous life, 
notwithstanding the powerful aid which it affords in determin- 


1 See the report of the Minister of Justice (Mancini) on the draft of the 
new Italian Penal Code, p. 227 (Rome, 1877). 


328 CRIMINOLOGY [$ 11 


ing his classification and ascertaining the repressive measures 
which his case most requires? 

In our system, the fact of recidivism is altogether too im- 
portant a matter to be under any circumstances left out of 
view. It is sometimes one of the surest signs of the instinc- 
tive and incorrigible offender. But if we are to appraise it 
at its just value, as will be seen in the last chapter of this book, 
it will not do to study it as an isolated fact: inasmuch as its 
significance very greatly depends upon the kind of criminality, 
it must be studied in its relation to the different classes of 
criminals. 

Praise must be accorded the French government for its 
good sense in brushing aside juridical sophistries and setting 
on foot energetic measures for the suppression of recidivism. 
As long ago as 1854, it enacted a law whereby criminals sen- 
tenced to penal servitude (“travaux forcés’’) for terms of 
eight years and upwards were, upon the expiration of their 
imprisonment, forced to reside for life in the colony of 
New Caledonia. This, as might be expected, resulted in a 
marked decrease of recidivism. The average annual number 
of cases, which was 1,200 in 1851-55 fell to 864 in 1861-65. 
In 1871, out of 1,710 accused, only 80 had undergone a pre- 
vious criminal conviction.! But the movement did not stop 
here. In 1885 there was passed a law which made internment 
for life in a colonial possession (“‘relégation perpétuelle”’) 
the punishment of. recidivists guilty of even the less serious 
offenses, whenever the number of previous convictions ex- 
ceeded a fixed minimum varying with the species of crime. 
Similar proposals have been advanced in Germany since ‘the 
acquisition of its African colonies.” 

In other countries, because of the all-powerful influence of 
the juridical theorists, the current unfortunately is setting the 
other way. Volumes have been written to prove that morally 
the recidivist is no more responsible than the first offender — 


1 Reinach, “Les récidivistes,”’ p. 58 (Paris, 1882). 
2 Bruck, “Die Gegner der Deportation” (Breslau, 1901). 


§ 12] EXISTING THEORIES OF CRIMINAL LAW | 329 


something which is no doubt true. And from this premise is 
drawn the wholly unsound conclusion that the former ought 
not to be punished any more severely than the latter.’ 

Nor is this a mere matter of the harmless pastime of some 
closet logician who diverts himself in the deduction of corol- 
laries from his principles. What we are faced with here is the 
alarming fact that those legislatures in whose membership 
the juridical element is preponderant, make no scruple of 
translating these same faulty conclusions into provisions of 
law, — the effect of which can be none other than to lend 
countenance to the enemies of society and embolden them in 
their merciless warfare. 


§ 12. Extenuating Circumstances 


In passing, a word may be proper on the subject of exten- 
uating circumstances. The principle here involved is one 
which effected its entrance into the law in connection with the 
doctrine of moral responsibility. Its logical consequence is 
that the punishability of the act decreases in inverse ratio 
to the strength and irresistibility of the criminal impulse. 
Setting thus at naught the true aim of repression, it furnishes 
an additional proof that the doctrine of moral responsibility 
is wholly irreconcilable with the social defense. 

Replace this consideration with that of the offender’s 
perversity, and it will be perceived that many circumstances 
which are ordinarily regarded as matters of extenuation be- 
come wholly indifferent, or else require a form of repression 
other than that which would have been prescribed in their 
absence, but one in nowise regulated by the words “‘mildness”’ 
and “‘severity.’”” These words, indeed, are bound to disappear 
from the criminalist’s vocabulary, for the notions which they 
import are without relation to the object of punishment. 

One of the absurdest institutions due to the recognition of 

1 See Orano, “La recidiva nei reati” (Rome, 1883), a work which Barzilai 


has keenly criticized in his brochure: “La recidiva e il metodo sperimentale” 
(Rome, 1883). 


330 CRIMINOLOGY [§ 13 


extenuating circumstances is the practice of making what are 
really felonies the subject of correctional punishment (“‘cor- 
rectionnalisation des crimes”). For example, a theft aggra- 
vated by breaking and entering (“vol qualifié par effrac- 
tion”) ' may lose its character of felony (“crime”), and be- 
come a misdemeanor (“délit”’), if the court chooses to regard 
the insignificant value of the stolen articles as an extenuating 
circumstance. The fact that the property has been recovered 
is often treated as a circumstance of this sort. So too, the age 
of the offender quite often serves as an excuse for applying the 
practice in question to very serious crimes. The distinction 
between felonies and misdemeanors thus loses every reason for 
existence. Such a distinction is justified only so long as we 
confine the latter class to mere legal disobediences, offenses 
of no particular intrinsic immorality, and harmful acts occa- 
sioned by thoughtlessness or inadvertence. But the reforms 
introduced by the Code Napoléon and the practice here re- 
ferred to, have been tending more and more to departure from 
this conception of the distinction. And today it is a common 
thing to see violations of the most intimate human senti- 
ments forced into the category of misdemeanors and result- 
ingly exempted from the punishments prescribed for felonies, 
— which, it is to be noted, alone of the existing punishments 
do accomplish a measure of elimination, however incomplete 
and temporary this may be. 


§ 13. Punishments of the Present System 


The punishments which find place in the present system 
need not long detain us. In the preceding chapters we have 
shown the inefficacy of temporary imprisonment for a period 
fixed in advance. And this, be it observed, is precisely the 
type of punishment which today predominates, the type, 
moreover, with which the juridical school would com- 
pletely supersede every other. It is of little moment whether 
we speak in terms of penitentiary, jail, or house of correc- 

1 [See ante p. 151, note 1. — TRanst.] 


§ 13] EXISTING THEORIES OF CRIMINAL LAW _ 331 


tion,! the method is always in essence the same, varied only 
by the form of regulation. Other types, however, still survive: 
the death penalty, life-imprisonment, exile, internment in an 
oversea penal colony (“‘relégation’’), and fines. But the last, 
where the offender cannot pay, is converted into a fixed term 
of imprisonment; internment in penal colonies is a measure 
used only on a small scale and by a few countries; exile or 
- banishment is possible only in the case of political offenders; 
while the death penalty almost everywhere in Europe is 
inflicted only in extraordinary cases. 

To complete our examination of the existing criminal law 
would require us to show the legal relations between the several 
crimes and their punishments. But this would lead us too 
far afield and besides would be without profit from the stand- 
point of results. For a people recognizes as law, not that which 
the law-maker has written, but that which it sees applied by 
the judges. The principle of moral responsibility in conjunc- 
tion with the extenuating circumstances fixed by the law 
itself or left to the sole determination of the trier, has 
brought it about that the punishments prescribed by law are 
almost never applied. 

For example, the Sardinian Code, like that of France, 
contained a provision punishing homicide without premedita- 
tion or lying in wait, with penal servitude for life. But just as 
soon as the Courts of Assizes adopted the practice of limiting 
the punishment for this crime, as a general rule, to six or 
seven years of penitentiary imprisonment, the law became a 
dead letter. Any efficacy which the punishment possessed 
must be attributed to this sentence of six or seven years which 
the public actually saw imposed, and not to the useless menace 
of life-imprisonment, known only to those who had studied 
the code. “I know of an instance,” says Cosenza, “where a 
prisoner who had been convicted of homicide and sentenced 
to twenty years’ penal servitude, had not the slightest doubt 


1 [“ Maison de force, réclusion, travaux forcés, prison cellulaire ou prison 
correctionelle,” in the original. — TRanst.| 


332 CRIMINOLOGY [$13 


that this punishment was illegal, because up to that time no 
homicide committed in his part of the country had met with 
a sentence of more thana few years’ imprisonment. In another 
case, a sentence of twenty-five years’ penal servitude for 
homicide and attempted homicide was such an unheard of 
thing in the community where it took place, that it was gen- 
erally believed to be the result of error or abuse of power.” ! 
In these temporary punishments — segregation for a few 
years fixed in advance — we have, therefore, all that is left 
of the punishments established by law. And at that, this 
segregation is only relative, for in the penitentiary establish- 
ments maintained at a heavy expense to the public, absolute 
and continual isolation is never the case. Elsewhere the cellu- 
lar régime brought to that state of so-called perfection which 
consists with the teachings of the correctionalist school, allows 
the inmates a certain degree of contact: if they no longer sleep 
in a common room, they at least work together. 

Yet, in spite of the fact that these sentences of three, five 
or ten years of imprisonment, are wholly without effect upon 
the offender himself, it cannot be denied that they are produc- 
tive of some social gain. For the segregation such as it is, 
spares society a greater or less number of crimes. Five 
years’ imprisonment, for example, inflicted upon a professional 
thief, means from one to two hundred thefts the fewer. This 
is always something to be considered; and the punishments 
of the present system, if strictly applied, would at least have 
this relative utility. But, unfortunately, the statute law is 
one thing, the judicial law (“jurisprudence’’), another. 
The sole object which the latter seems ever to keep in view 
is to mitigate punishment as far as it possibly can. This 
circumstance is due to certain principles which have taken 
firm hold in the juristic mind, among others the principle that 
in construing the law the magistrate must lean to the side of 
the offender. “Where the question of human slavery was in- 
volved,”” to quote again from Cosenza, “the ancient juris- 

1 Inaugural address at the Tribunal of Santa Maria Capua-Vetre, 1884. 


§ 13] EXISTING THEORIES OF CRIMINAL LAW 333 


consults decided ‘pro libertate,’ because they felt that the 
institution of slavery, while recognized by the law, was not 
in accordance with humanity and justice. Looking at the de- 
cisions of our courts on questions of criminal law one might 
easily suppose that we have the same notion of that important 
institution which we call the punishment of criminals, as the 
Roman jurisconsults thus had of slavery. For we study to 
moderate, nay, even to annul as far as possible, the legal con- 
sequences which appear to bear too heavily on the offender. 
On one occasion, I was present when a criminal was acquitted 
because through error a negative answer was written to the 
principal question propounded to the jurors, notwithstanding 
that the answers to the subordinate questions clearly evi- 
denced the mistake.! It counted for nothing that the jurors 
desired to rectify the verdict. The court held that the nega- 
tive answer returned to the principal question created a right 
in favor of the accused. The decision recalled to my mind that 
tule of the Roman law whereby the child of a female slave 
acquired the right to liberty from the fact that the mother, 


1 (In France (and the practice in Italy is substantially the same) . . . 
“the President is required by the Code to state to the jury in writing the 
questions which they are to answer. . . . The object of the questions, to 
each of which the jury must answer Yes or No, is to constitute when taken 
with the answers a statement of fact which will enable the Court to discharge 
their duty. The result, therefore, of a French trial by jury is not to get a 
verdict of guilty or not guilty, but to get the facts stated in a form analogous 
to a special verdict with us, orto aspecial casein civil matters” (Stephen, “‘ His- 
tory of the Criminal Law of England,” I, pp. 553, 554). 

Supposing the prosecution to be for theft by a workman from his employer, 
the questions might assume the following form: 

“(1) Is N. the accused guilty of having, within the past ten years, stolen 
(‘frauduleusement soustrait’) timber and tools to the prejudice of X? 

““(2) At the time of such theft, was N.a workman employed by the said X? 

“(3) Was such theft committed in the workshop of the said X? 

“(4) Was this workshop connected with the dwelling occupied by X? 

(5) Was the theft above mentioned committed by means of breaking 
and entering (‘effraction’)? 

(6) Was it committed in the night-time?” 

From the answers the court will be enabled to say whether the defendant is 
guilty of theft and if so, which if any of the aggravating circumstances referred 
to in the questions enter into his offense. See Gargon, “Code pénal annoté,” 
I, p. 1236, note 481; from which the foregoing set of questions is taken. — 
TRANSL.] 


334 CRIMINOLOGY [§ 13 


during her pregnancy, had enjoyed some period of freedom, 
were it even as the result of a mistake. The humanitarian 
part which our fathers acted in this regard, we seem to imitate 
by permitting the malefactor to escape his just deserts. We 
smile at the medizval Roman custom which extended clem- 
ency to the culprit who chanced to meet a cardinal by the way. 
But at the present day an accidental happening of no greater 
relevance — the fall perhaps of a drop of ink on a juror’s 
ballot — may mean nothing less than a judgment of 
acquittal.” * 

No subtleties are too refined, no sophistries too extreme, to 
receive a favorable hearing in courts of justice, when the ques- 
tion is one of mildening a punishment thought to be over- 
severe. The recognition of extenuating circumstances, which 
- should be the exception, has instead become the rule. There 
are courts which accord this recognition almost as a matter 
of course and justify it by the most trivial reasons, such, for 
example, as the fact that the accused has confessed, notwith- 
standing that it would have availed him nothing to deny the 
charge. In the few instances where the court does not see 
fit to cut down the statutory punishment by this means, 
it seldom imposes more than the legal minimum. Then 
too, the fact of recidivism is almost lost sight of. In my own 
experience, I have seen criminal -record-sheets (“ casiers 
judiciaires’”’) which told an almost unbelievable story: of 
extenuating circumstances recognized in the case of recidi- 
vists with as many as ten previous convictions; of thieves and 
sharpers sentenced to two and three months of imprisonment 
for their fifth or sixth offense; of bloodthirsty scoundrels 
with whom the law had many times dealt for inflicting wounds 
by shooting or stabbing, escaping with a few weeks of deten- 
tion for a fresh offense of this character. 

In those districts where the use of the knife and revolver 
is habitual among the criminal element, the number of 
shootings and stabbings has given rise to the practice, adopted 

1 Address before cited. 


§ 13] EXISTING THEORIES OF CRIMINAL LAW 335 


for the purpose of preventing congestion in the Courts of 
Assizes, of making these offenses the subject of correctional 
jurisdiction. This is effected either by allowing extenuating 
circumstances, or else by treating the case, not as an attempt to 
commit homicide, but as a wounding of the grade of misde- 
meanor (“délit de blessures’’). As a result there is a very large 
number of criminals whom the fact of plunging a knife in 
their victim’s breast or firing a revolver at his head, has not 
served to class as homicidal offenders (“meurtriers”). Their 
fault forgotten, they are today free citizens in full possession 
of their legal rights. To cite one instance from a thousand, 
it was held, where the accused had placed the muzzle of his 
pistol against the mouth of his adversary, and while it was in 
that position pulled the trigger, that these facts did not con- 
stitute an attempt to commit homicide. Inasmuch as the 
weapon had missed fire, the court took the view that the evi- 
dence of homicidal intent was insufficient, and that the only 
offense here was the misdemeanor of putting in fear with a 
deadly weapon (“‘menaces 4 main armée”’). 

When a homicide has been actually committed and the fact 
of intent is beyond dispute, the most trivial circumstance is 
made to serve as an excuse. If the crime has been preceded 
by an altercation, then, without any pains being taken to see 
how the quarrel originated or on which side lies the blame, 
it is at once concluded that the accused acted under provo- 
cation. Let a man who has been outrageously insulted but 
raise his hand against the offender or tap him with his cane, — 
he does so at his peril. For by this act he has given to the other 
power of life and death over his person. Like as not, the 
aggressor will go in search of a revolver and returning at the 
end of half an hour, when the insulted man has perhaps dis- 
missed the incident from his mind, will leave him a corpse 
in the public street. The judges, or if they do not take the 
initiative, the jurors, will not be long in finding an absence of 
premeditation from the fact that at the time of the act, the 
feelings of the accused were still smarting from the slight 


336 CRIMINOLOGY [§ 13 


physical retaliation of his victim. They will find also, and for 
the same reason, that he acted under provocation. Moreover, 
they will give him the benefit of extenuating circumstances, 
if, indeed, they do not see fit to apply in his favor the principle 
of irresistible force. If an acquittal does not follow, the punish- 
ment ordinarily imposed in such cases, at least in Italy, is but 
three to fiveyears’ imprisonment. This explainswhy the same 
individual can have to his score three or four homicides sepa- 
rated by short intervals. The murderer of this type knows so 
well that the fact of a slight dispute preceding the criminal 
act will save him from serious consequences, that he purposely 
arranges that this shall take place, provoking his adversary 
until the latter retaliates with a blow. That done, the criminal 
can work his will. And when arrested with the still reeking 
knife in his hand, he exclaims: “All right. I will get some 
eighteen months in prison for this, but I have done what I 
long wanted to do.”’ Thus it is that we tolerate murder in 
the midst of our so-called civilization. 

There is nothing in these pages but what is drawn from some 
case with which I have been connected in an official capacity. 
I have had no occasion to borrow from others; still less, have 
I given rein to my imagination. Minutes of the facts above 
cited are still in my possession, and if need be, proof of 
my assertions can be furnished to any who, unfamiliar with 
the courts and the bar, might be inclined to tax me with 
exaggeration. 

But, it may be said, these abuses are not the fault of the 
law itself but of its application. This is perhaps true but 
cannot alter the case. For to what is this fault of application 
due, if not to the principles of the dominant theory. It is 
these which have given rise to a judicial law which ever 
leans to the side of the offender. If it becomes the duty of 
the judge to determine the question of guilt by the standard 
of moral responsibility, what right have we to demand that 
he shall not look for extenuating circumstances. According 
to this standard, such circumstances actually exist in most 


§ 13] EXISTING THEORIES OF CRIMINAL LAW 337 


cases; sometimes, indeed, they are wrongly ignored. For 
when we undertake to ascertain whether a man is really 
responsible for what he does, we always end by discovering 
that he is not. It is to the fallacy which pervades the entire 
system that the present ineffectiveness of repression is due. 
The whole blame rests with the two principles of moral re- 
sponsibility and penal proportion. 

For these principles disarm the judge, and render him pow- 
erless to take any active share in the struggle against crime. 
How, for example, can he consistently say that the recidivist 
is guiltier than the first offender and punish him accordingly, 
when he knows that, because of the infamy attaching to his 
past, the prisoner has been unable to obtain employment, has 
been shunned and despised by honest men, and in consequence, 
to use the expression of Tarde, has found his only welcome 
in the criminal microcosm whence he emerged (“sa petite 
patrie criminelle”)? How is it possible for the judge to suppose 
that this man can resist his criminal propensities as easily as 
the man who is restrained by the fear of losing his yet untar- 
nished reputation? The judge is more logical than the law. 
When we see him imposing punishments so ridiculously in- 
effectual, so utterly useless from the standpoint of social 
protection as to wear the appearance of some ironic jest, 
the fault is not his, but that of the theory in which he finds 
his justification. 


CHAPTER III 
DeErects OF THE Existinc CrimmNAL PROcEDURE 


. The Distinction between Public and Private Criminal Actions. 
. Enforcement of the Judgment for Damages. 
. The Judicial Investigation. 
Provisional Liberty. 
. Criminal Trials: the Jury. 
. The Same: the Judges. 
Prescription of Criminal Actions. 
Prescription of Criminal Judgments. 
Executive Clemency.! 


CO? COR OR 00? COR 00? CO? CO? CO? 
OH OD Ore OO HH 


Tuat the dominant theory and the judicial law which has 
conformed itself thereto seem to exist for the purpose of pro- 
tecting the criminal against society rather than society against 
the criminal, the reader has already learned from the preced- 
ing chapters. But it is not till we come to the rules governing 
criminal procedure that we find this purpose at its fullest 
expression. For here it is the statutory law itself which, by 
suggesting to criminals the means of escaping punishments 
or insuring protracted delay in their execution, has in one of 
its branches undertaken to render difficult the application 
of the provisions contained in another branch. 


§ 1. The Distinction between Public and Private 
Criminal Actions 


We may begin with the distinction between public and pri- 
vate criminal actions. This distinction is often based upon 
the objective nature of the offense, regardless of the perversity 
of the agent; sometimes upon the kind of punishment pre- 


1 [§§ Land 2 = § I of original; §§ 3,4, 5and6 = §II; §§7and8 = § III; 
and §9 = § IV. — Trans] 


§ 1] DEFECTS OF EXISTING CRIMINAL PROCEDURE 339 


scribed by law or imposed by the court. For example, 
indecent assaults (“attentats 4 la pudeur’’) for the most 
part do not fall within the category of public actions, or, what 
amounts to the same thing, they require complaint on the 
part of the injured person before the offender can be prose- 
cuted. The same is true of those cases of threats, and strikings 
and woundings (“coups et blessures’’), which are punishable 
as police offenses (“‘contraventions”), and by the Codes of 
some countries, of false pretenses, whatever be the punishment 
imposed. In Italy, there has been an increasing tendency to 
narrow the class of public actions. And with it all, the per- 
sonality of the agent is completely forgotten. Whether he is a 
recidivist, whether the manner in which he has planned and 
consummated his crime indicates the dangerous criminal, 
whether he has made reparation for the damage — these are 
matters to which not the slightest attention is paid. A private 
citizen thus becomes the arbiter of the social function of re- 
pression. Upon him it devolves to say whether the violator 
of a social law shall be punished, whether he shall be imprisoned 
or allowed at large. To this citizen the State puts the ques- 
tion: “Do you desire that the professional sharper who has 
made you his victim shall be prevented from fleecing others, or 
is it your wish that he do to others what he has done to you?” 

Such an attitude on the part of the State almost leads one 
to wonder if we are not in a fair way to return to the times when 
punishment was merely the vengeance of the victim or his 
family. 

Tous, the expression “private action” as applied to acriminal 
prosecution is wholly devoid of meaning, so far at least as con- 
cerns what we have termed natural crimes. In cases of 
strikings and woundings (“coups et blessures’’), threats to 
kill, rape, false pretenses, and forgery, whether complaint 
has or has not been lodged, society, once it learns of the crime, 
cannot remain inactive. And when the State thus takes the 
initiative it will be impossible for the offender to defeat the 
ends of justice, as in certain regions is often now the case, 


340 CRIMINOLOGY [§ 2 


by intimidating the injured person into withdrawing his 
complaint. 

It is of small moment that viewed objectively the crime does 
not appear especially grave. The thing is to know what sort 
of offender we are dealing with, to become acquainted with 
his personality, to determine his type, to see if he is not to be 
numbered among those who because of their lack of adapta- 
tion to the social environment, must be made the subject of 
eliminative measures. If investigation discloses that the 
offender does not belong to the class of true criminals, that in 
spite of a slip he is not of a nature very different from that of 
the generality of men, then and then only, as has been said in 
the preceding chapter, repression, always necessary, may as- 
sume a different form, — namely, coercion to make reparation 
of the damage, both moral and material, resulting from his 
injurious act. 


§ 2. Enforcement of the Judgment for Damages 


On this question of reparation we differ yet more decidedly 
from the jurists. The latter have been content with the prin- 
ciple that conviction of the offender carries with it the obliga- 
tion to respond in damages.! This posited, they have stopped, 
for, according to their view, the enforcement of the obligation 
is a matter to be regulated by the ordinary rules of civil pro- 
cedure; the obligation they regard as one “ex delicto” 
just as if it had been one “ex contractu”’: it is no concern of 
the criminalists. 

In practice, even where the defendant is not insolvent, 
the judgment for damages in a criminal matter is in most 

1 [* ... In every French criminal proceeding, from the most trifling 
to the most important, any person injured by the offense may make himself 
‘partie civile.’ In certain cases he may, by doing so, be made liable in damages 
to the accused. A French criminal trial may thus also be a civil proceeding 
for damages by the party injured by the crime, and at the same time an action 
by the accused for what we should call a malicious prosecution” (Stephen, 


“History of the Criminal Law of England,” I, p. 524). The same is true of 
Italy, the claimant there being called the “parte civile.”” — TRranst.] 


§ 2] DEFECTS OF EXISTING CRIMINAL PROCEDURE 341 


cases little else than a mockery. For no attachment can be 
ordered until after the entry of a judgment concluding the 
case (“arrét définitif”’). This means that pending the judicial 
investigation (“instruction”) and even after judgment of 
conviction, where steps have been taken to have the last re- 
viewed, the defendant is free to effect the disappearance of all 
his personal property. By the law of some countries, it is 
true, real property may be attached following the issuance of a 
warrant of commitment (“mandat d’arrét”’),! but, on the 
other hand, there are only a few cases, and those only the most 
serious, in which it is considered necessary to secure the person 
of the accused pending the judicial investigation. For the 
most part, therefore, the demand of the injured person is 
neither a preferred nor a secured claim. The defendant pays 
only when it suits him, and this, as may well be supposed, 
seldom happens. Since the rules of civil procedure are appli- 
cable to the ascertainment of the damages as well as to the 
enforcement of the judgment, sometimes years are consumed 
in contests, proceedings for review, and delays of all sorts. 
This explains the fact vouched for by Cosenza that sums no 
greater than three hundred, two hundred, or even one hundred 
francs have been known to be offered as indemnity for a 
murder. An instance occurred, he writes, “‘where the brothers 
of a murdered man, tired of litigation, compromised their 
claim by accepting fifty francs from the murderer.” As for 
insolvent offenders, it is useless even to speak of them, say 


1 [The “mandat d’arrét”’ issues only when the defendant is to be held 
without provisional liberation or bail. Preliminary writs are the “‘mandat 
de comparution” which answers to our summons and the “mandat d’amener” 
which answers to our warrant. . . . “‘ When the suspected person appears be- 
fore the Juge d’Instruction either upon a ‘mandat de comparution’ or upon a 
‘mandat d’amener’ he must be interrogated. . . . If his answers are satis- 
factory, he is discharged, if not he is remanded under a ‘mandat de dépét.’ 
This ‘mandat de dépét’ may be changed into a ‘mandat d’arrét’ (which, how- 
ever, can be issued only upon the requisition of the Procureur de la République) 
at any period of the instruction. The principal difference between them is 
that the ‘mandat d’arrét’ is definitive, the ‘mandat de dépét’ provisional” 
(Stephen, “History of the Criminal Law of England,” I, pp. 531, 532).— 
TRANSL] 


342 CRIMINOLOGY [$2 


the jurists, for “Nemo dat quod non habet.” The great 
majority of offenders, therefore, escape the obligation in ques- 
tion. And with those who cannot escape it, the fulfillment 
hardly deserves the name. 

For this condition the jurists have no remedy, because, as 
they view it, the obligation here involved is a civil obligation 
and consequently enforcible only by the ordinary means of 
civil procedure. Any more drastic form of coercion would be 
an abuse worthy of a barbarous country, wholly at variance 
with legal progress, etc. 

To our way of thinking, there is an immeasurable difference 
between a debt arising from contract, where default of pay- 
ment is something that can be foreseen and guarded against, 
and a debt arising from a criminal offense — from violation, 
not of a rule of conduct adopted by the agreement of two per- 
sons, but of a rule of conduct universally recognized in human 
society. Men are not in the habit of lending to insolvents or 
of lending without security. If any one should do so, he is 
wanting in prudence and must abide the consequences. 
But all alike are exposed to aggression on the part of insolvents. 
Why, then, should insolvency enjoy this privilege? And see- 
ing that the origin and nature of the two debts are so dissimilar, 
why should the means of enforcing payment be identical? 

The reader has already been made acquainted with our 
views on this subject.!. We regard the severest form of compul- 
sion as just in the case of the insolvent offender. He should be 
kept in detention until he shall have paid his debt, together 
with all expenses of his maintenance in prison. Not the 
slightest indulgence should be shown him. As I have said 
elsewhere: “Let him sell his house, his shop, his forge, — 
cost what it may, he must find the money.” ? The essential 
thing is that he make reparation for the crime. To force 
him to do this, it is necessary that the law be relentless. If 


4 See ante, Part ITI, c. 1, § 1. 
2 Actes du premier Congrés d’Anthropologie criminelle, p. 307 (Rome, 
1887). 


§ 2] DEFECTS OF EXISTING CRIMINAL PROCEDURE 343 


he is insolvent, then he must be made to pay over, out of his 
daily earnings, every penny in excess of his actual necessities — 
in excess, that is to say, of what is strictly necessary, irrespec- 
tive of the difference in social conditions, for the maintenance 
of life and health. Should the offender prove refractory, or 
should there be reasonable ground to believe that his insol- 
vency is feigned, this coercion will last indefinitely. In other 
cases, there will be fixed a longer or shorter term, according 
to the importance of the damage caused by the criminal act, 
so that there will be no danger of the prisoner being held 
in life-long slavery in the effort to work out a judgment for 
some impossible sum. 

That these propositions readily lend themselves to being put 
into practice will be shown in the following chapter. 

The foregoing considerations have made plain to the reader 
the radical difference between our system and that of the 
jurists, with respect to this question of reparation. If the 
strict rules which we advocate were to be adopted, every species 
of punishment could be dispensed with in the case of such 
offenders as are not sufficiently dangerous to require elimina- 
tion. The result would be the complete disappearance of the 
so-called correctional punishments. And this means an 
end of congested prisons and an end, too, of the corruption 
of thousands who, once having experienced the prison con- 
tamination, can never again become good citizens. Moreover, 
it would no longer be possible for the prisoner, after having 
served a few months or years of correctional imprisonment, 
to enjoy unmolested the fruits of his maleficent activity, 
confided in the meantime to the hands of friends or relatives. 
And the foreclosure of such a possibility will be a‘much more 
potent means of disarming the enemies of society than the 
ridiculous punishments which are today imposed in the hope 
of reforming offenders.! 


1 See on this subject: Actes du Congrés d’Anthropologie criminelle, w.s. 
p. 23 et seq., 306, 363 et seg.: Actes du Congrés pénitentiaire international, 
p. 185 et seq., pp. 200, 201 (Rome, 1885); and my two brochures: “Cid che 


344 CRIMINOLOGY [$3 


§ 3. The Judicial Investigation 


Another feature to be looked at is the judicial investigation 
preceding the trial (‘instruction des procés”’).!_ This, accord- 
ing to the doctrinaires, should be conducted openly, in the 
presence of the accused and his counsel. Only by such a 
method, they maintain, can impartiality be assured. They 
forget, however, that in the greater number of cases, the strict- 
est secrecy is required for the ascertainment of the truth. 
To exhibit to the accused and his counsel the slender thread 
which, scarcely visible, is yet the sole guide in the labyrinth 
of possible evidentiary facts, is tantamount to breaking it. 
And even in the least complicated cases, acquainting the 
accused with the testimony which has been given against him 
would be a practice not unattended with danger. 

In spite of this very substantial consideration, the French 
legislature in 1897 modified the Code of Criminal Procedure? 
with respect to the examination of the accused. As a result, 
the law of France now gives the right to counsel from the 
moment of arrest, and allows counsel to be present at the first 
examination of the accused. In my judgment this system is a 
very dangerous one, since it renders it possible for counsel to 
become the go-between of the prisoner and complaisant wit- 


dovrebbe essere un giudizio penale” (Turin, Loescher, 1882), and “Ripara- 
zione alle vittime del delitto” (Turin, Bocca, 1887). 

1 [The following passage contained in the 2d Italian edition of the present 
work (Turin, Fratelli Bocca, 1891) is here reproduced for its explanatory 
value: “Under our procedure the judge of instruction is entrusted with the 
duty of examining the witnesses indicated by the accused and collecting 
proofs to establish his innocence or to diminish his guilt. The sole office of 
this magistrate is to throw light upon the case — not at any cost to find a 
scapegoat. The accused has the right to make legal objection (“‘reclamare”’) 
against the order declaring lawful his arrest. He may have the grounds of 
his objection presented by counsel and passed upon by the Section of Accusa- 
tion (see ante, p. 193, note 3). The right to defend is therefore admitted at 
the very first stage of the cause. . . . Since the office of the judge of instruction 
is neither to accuse nor defend, his impartiality takes the place of contest 
(“contraddizione”) between the parties, to the decided economy of time 
and labor” (p. 395). — TRranst.] 

2 [Code d’instruction criminelle”’ is the official title. — TRanst.] 


§ 4] DEFECTS OF EXISTING CRIMINAL PROCEDURE 345 


nesses. In Italy proposals have been advanced of an even 
more dangerous character, into the details of which I cannot 
enter here.! It is only the rapid succession of ministerial 
crises that has saved the Italian judge of instruction from 
being reduced, according to the apt figure of a newspaper 
writer, to the state of a dancing puppet with the two adver- 
saries alternately pulling the strings. In cases of the most 
important crimes, where as yet no conclusive evidence has 
been discovered against the person suspected, to conduct the 
judicial investigation in public is to renounce all hope of arriv- 
ing at the truth. Hundreds of cases might be cited in which 
conclusive evidence of guilt has been obtained only by preserv- 
ing the strictest secrecy in the judicial investigation. It is 
therefore to be hoped that the public will suffer to pass un- 
heeded the rhetorical outbursts of certain members of the 
bar who contend for the complete publicity of every step in 
the procedure from beginning to end. 


§ 4. Provisional Liberty? 


But the most debated topic of criminal procedure is that 
relating to the detention of the accused pending final deter- 
mination of the cause. We hear it asserted that this is often 
an unjust measure, and one to be resorted to only in extreme 
cases, when there is reason to believe that the accused will 


1 See my articles in the Nuova Antologia, for 1900-1902 (Rome). 

2 [The natural rendering of “liberté provisoire”’ in terms of English law 
is “‘release on bail,” but such a rendering would be inexact as applied to the 
Continental systems. Thus by the French law “in cases in which the maxi- 
mum punishment is two years’ imprisonment the prisoner has a right to be set 
at liberty if he has a domicile, and has not been previously convicted of a crime 
or sentenced to a year’s imprisonment. In cases in which the provisional 
liberation is not a matter of right the defendant may be held to bail ”’ (Stephen, 
“History of the Criminal Law of England,” I, 535). In Italy, on the other 
hand, although provisional release is in general a matter of right where the 
punishment involved is less than three years of ordinary imprisonment 
(“reclusione o detenzione”), bail can be dispensed with in but one instance, 
that is to say, when the accused is a poor person and investigation results 
favorably to his previous good moral character. (Code of Criminal Procedure, 
Art. 214; “‘Digesto Italiano,” XIV, pp. 848, 882-3. — Transt.] 


346 CRIMINOLOGY [§ 4 


become a fugitive from justice. Enounced and repeated by 
legal theorists without practical experience in criminal cases, 
arguments of this sort have become almost commonplaces; 
the press has caught them up; and some fine morning we shall 
awake to find them translated into terms of law, — made the 
subject of statutes hastily drafted by persons who are either 
incompetent or else, because of their private professional 
interests, opposed to severity in the repression of crime. 

In the first place, it is inaccurate to say that imprisonment 
pending trial (“emprisonnement préventif”’) has no other ob- 
ject than to prevent the flight of the accused. It is often 
necessary for the purpose of keeping the accused from effect- 
ing the disappearance of physical evidence (“traces matéri- 
elles”’) of his crime; to hinder him from concerting measures 
with his accomplices or friends for the corroboration of the 
story which he has told; to render more difficult the intimi- 
dation or subornation of witnesses; to influence the prisoner 
to confess (something which not unfrequently happens); 
and finally, to protect the accused himself from the vengeance 
of the injured person or his family. As to the probability of 
flight, however, it must be obvious that, apart from some 
exceptional cases, this is always present, whenever the punish- 
ment involved is of more or less severity or threatens the 
offender with serious financial loss. 

No doubt it is difficult to formulate general rules which will 
be applicable in all cases, but, subject to the power of the judge 
of instruction to make exceptions in proper cases, imprison- 
ment pending trial could be defined as necessary in the follow- 
ing instances: 

(1) Where it is probable that the accused will be sentenced 
to a punishment heavy enough to make it an object to him 
to take to flight or go into hiding, — because the punishment 
in question is for him the greater of the two evils. 

(2) Where the case is one of striking (“coups”) or wound- 
ing (“blessures’’), until the victim has fully recovered from 
the effect of his injuries. 


§ 4] DEFECTS OF EXISTING CRIMINAL PROCEDURE 347 


(3) Where it is probable that the person injured will 
resort to bloodshed to take revenge upon the aggressor. i 

(4) Where the accused is a recidivist, habitual offender, or 
person without visible means of support or fixed place of abode. 

(5) Where the accused is a thief or swindler who has been 
taken in the act. 

(6) And finally, in all cases where there is danger of the 
accused intimidating or suborning the injured person or the 
witnesses, or in any way hindering or thwarting the judicial 
investigation. 

The cases in which the warrant of commitment (“mandat 
d’arrét”’) should issue being thus determined, the institution 
of provisional liberty (“‘liberté provisoire’’) would lose all 
reason for existence. There would no longer be any such thing, 
except where the judge of instruction has good reason to be- 
lieve in the innocence of the accused. 

As it exists at present, this institution is a source of the 
greatest dangers. It seems expressly devised for the encour- 
agement of the criminal classes, and testifies to the ingenuous- 
ness of law-makers in failing to take into account the new 
weapons with which civilization has furnished the malefactor. 
It is readily understood how, in the small cities of the ancient - 
world or even in the municipalities of the Middle Ages, the 
person accused of a misdemeanor or, for that matter, of a 
felony, might be permitted at large pending the result of his 
trial. The difficulties of traveling were great; those of living 
in a foreign country still greater. Flight was voluntary exile; 
and exile was regarded as a punishment of exceptional gravity 
— according to the Roman law, a capital punishment.! And 
yet precautions were taken: the prisoner was not released 
without an undertaking on the part of some reputable persons 
to produce him at the proper time: “Si fidejussores habere 
non potuerit, a ministris comitis custodiatur et ad mallum 
perducatur.” 2? The Roman law always made an exception to 


1 Dig., Lib. XLVIIL, Tit. 1, “De pub. jud.,” § 2. 
2 Cap. Karoli II, anno 873, jan. 4 (229, Pertz, Hanover, 1835). 


348 CRIMINOLOGY [$4 


the privilege of release in cases of the most serious offenses.! 
Even in England, the country of “habeas corpus,” a similar 
exception prevails, and in other cases the law permits the 
accused to be released only when the bail furnished is sufficient 
to give assurance that he will appear and abide the result of 
his trial. 

We, in the Latin countries, have lent a willing ear to the 
rhetoric of legal theorists, and, especially, have succumbed 
to the influence of sensational novels, wherein are depicted 
the moral tortures suffered by the innocent hero who under a 
wrongtul accusation of crime has been immured in some hide- 
ous dungeon. Asa result, the law has in many cases established 
the right of the accused to release pending the conclusion of the 
proceedings. Moreover, the judge is left the widest discre- 
tion to grant it, even where the crime is of the most serious 
character. Indigent persons are exempted from furnishing 
bail of any sort — an immunity which resembles the ancient 
privileges of caste, in that it is a true privilege of the prole- 
tariat. Release has come to be accorded even after the judg- 
ment of conviction, pending the delays incident to proceedings 
for appeal or review. The consequence is that a man found 
guilty, and sentenced to a merely correctional punishment, 
may walk out of jail, and be under no necessity of returning 
until the higher court has decided against him. It may even 
be said that the facility of release increases in direct proportion 
to the certainty of guilt. For the same individual who has been 
arrested on mere suspicion and detained on evidence which is 
far from conclusive (“simples indices”’) finds himself set at 
liberty just as soon as a solemn judgment has declared his 
guilt. 

Is not this sort of thing utterly opposed to reason and com- 
mon sense? Whatever grounds may be urged in justification 
of such a system, there is no gainsaying the fact that it is not 
natural; that it is unsound; that it cannot be comprehended 
by the popular intelligence, least of all by that of a Southern 

1 Dig., Lib. XLVIII, Tit. 3, “De custodia reorum,” §§ 1, 3. 


§ 4] DEFECTS OF EXISTING CRIMINAL PROCEDURE 349 


nation. How is it to be supposed that a people with the 
meridional characteristics of little foresight, of little sensibility 
to that which is not present and immediate, can be impressed 
by the menace of an imprisonment which is not to take effect 
until after the lapse of an indefinite period — one year or two 
years, or even more in the event of a new trial being ordered 
by a higher court? Remote menaces of this description may 
not be without influence upon people of a cold and calculating 
turn of mind. Up to a certain point they are understandable 
in the North, but in the South, to apply Spencer’s expres- 
sion, “there must be penalties which are severe, prompt and 
specific enough to be vividly conceived.” ! 

In Naples, when, by the new laws of 1865, provisional liberty 
was introduced even in serious cases of woundings (“blessures”’) 
the notion became prevalent with the lower classes that these 
offenses were no longer subject to punishment, or at most were 
punishable with the forfeiture of the bail-security, the amount 
of which seldom exceeded fifty francs. As a result, it was a 
common thing to overhear the remark among people of these 
classes that for fifty francs one could purchase the pleasure of 
bestowing a knife-thrust. This shows that the punishment 
which would be imposed by the court and executed after a 
long delay, was not a matter of concern; what struck the 
meridional imagination was the payment of the fifty francs, 
because this was exacted immediately.” 

As for the impression which this institution produces on 
the general public, it may be said without exaggeration to be 
always deplorable. Effort to explain such a system is quite 
in vain. The fact remains that a culprit who was in the power 
of the law is in its power no longer, and that it is the law it- 
self which has turned him loose. Imagine what must be 
thought of this proceeding by the neighbors, the friends, and 
the relatives of the injured person, — who perhaps is yet 
groaning from the pain of his wounds, who has been maimed 


1 Herbert Spencer, “ Prison-Ethics.” 
2 Turiello, “Governo e governati,”’ I, c. m1 (Bologna, 1882). 


350 CRIMINOLOGY [$ 4 


for life or who, again, has been reduced to poverty by the wiles 
of some clever swindler, — when they see the offender after a 
few months’ detention, and in spite of the fact that the judge 
of instruction has decided to hold him over for trial, released 
from custody and granted his full and absolute liberty until 
the cause shall have dragged its weary length through the Court 
of Appeal and the Court of Cassation. This means that the 
criminal is free to resume his former tenor of life, side by side 
with his victim — in the same house, if it suits his pleasure. 
One case may be cited, out of a multitude of such examples, 
where a peasant, to rid himself of competition for the leasehold 
of a farm, fired a loaded gun at his neighbor. His attempt to 
kill was unsuccessful, but at the end of eighteen months the 
man had not yet recovered from his wounds. In the mean- 
time, the would-be murderer who had been charged only with 
the offense of wounding was suffered to remain unmolested at 
home. The house in which he lived and the dwelling of the 
injured man opened on a common court, their doors being 
exactly opposite. As a consequence, the victim from his bed 
of pain was forced to endure the repeated sight of his assailant 
enjoying his pipe and glass in the open air of the enclosure. 
Such is the progress of judicial institutions! 

But much greater evils may and in fact do result. The 
criminal often takes revenge upon witnesses who have testified 
against him, or renews an attempt which before had proved 
unsuccessful. Here again, hundreds of tragic instances might 
be related, from which I shall select a few. Thus, a man who 
had been repulsed by a young woman whose affections he 
sought, fired at her with a revolver, the shot fortunately 
missing. He was arrested but admitted to provisional liberty. 
During the delay which ensued before his case came on for 
trial, he murdered the girl’s brother. In another case, a 
Cammorist forbade a waiter to pay attention to a young woman 
upon whom one of the law-breaker’s friends had designs. 
The first disobedience on the part of the waiter was punished 
with a razor slash on one side of the face. The young man com- 


§ 4] DEFECTS OF EXISTING CRIMINAL PROCEDURE 351 


plained to the police but continued his court. Some months 
later he received a like slash on his other cheek. He was thus 
disfigured for life by two fearful scars. The offender was 
arrested and sentenced to four years of imprisonment by the 
Correctional Tribunal. There was first an appeal, and later, 
proceedings for review of the judgment rendered on appeal. 
Four years thus passed. Meanwhile, the Cammorist daily 
promenaded infront of the café where the waiter was employed, 
taking occasion as he passed to blow cigar smoke in his victim’s 
face. The poor fellow had repeatedly refused offers to settle, 
but finally, the long delay causing him to despair of the out- 
come, he agreed to accept the sum which was offered. A 
judgment ordering a new trial (“jugement de renvoi’’) was 
procured, the complaint was withdrawn, new witnesses tes- 
tified to an imaginary provocation, and the miscreant 
was sentenced to a few months’ imprisonment, and even 
from this he was rescued by an opportune proclamation 
of amnesty! 

Sometimes the patience of the aggrieved person becomes 
exhausted and the consequent outburst of anger is the cause 
of a new crime. Witness the tragedy which not a great many 
years ago took place at Paris, in the very precincts of the 
Palais de Justice, when Madame Clovis Hugues shot and 
killed her defamer, whom she had prosecuted before the courts 
for many months and saw still at liberty, notwithstanding 
that he had been sentenced to prison. 

Again, it is impossible to estimate the pernicious effect of 
this institution, with respect to imitative and endemic crim- 
inality. In a village of Southern Italy, a man arrested for 
disfiguring with a razor a young peasant woman who had 
refused his attentions was granted provisional release; as 
usual, an appeal and proceedings for review left him at large 
for upwards of two years. Meanwhile, other disappointed 
admirers followed his example, and cases of this sort multi- 
plied to such a degree, that as I have before had occasion to 
point out, the best looking young women were terrified into 


352 CRIMINOLOGY [$4 


marrying the most desperate blackguards of the neighborhood. 
Are we not justified in laying the whole blame on this institu- 
tion of provisional liberty? For if the scoundrel who set the 
example had not been thus released, if he had been kept 
in custody before and after his trial until he had served his 
five or six years of imprisonment, it is not at all likely that he 
would have found imitators. This is in substance the remark 
of one of these same imitators when refused the provisional 
release which had been accorded to all his predecessors. He 
frankly acknowledged that had he expected to encounter a 
treatment so different from that of the others, he would not 
have committed this crime. 

There is, moreover, one consideration which should fore- 
close all debate on the practice under discussion. Provisional 
liberty leaves the accused free either to submit to the punish- 
ment which has been imposed upon him, or to avoid it. For 
in our day a man may travel unhindered from one end of the 
world to the other: passports, even, are nearly everywhere 
unnecessary. And for that matter, why is it at all necessary 
for the criminal to exile himself or indeed to go any distance? 
All that is necessary is to take refuge in the whirlpool of some 
great city. If he already lives there, he need only change his 
abode and the police will note in their “procés verbal” that 
he is not to be found. They do not put themselves about, 
except in the case of sensational crimes which keep the tele- 
graph lines of the whole country in a constant hum. Nor, 
on the whole, are they to be blamed, for the service which 
society now for the second time demands of them, has been 
already performed. They discovered the criminal; and 
in face of one knows not how many difficulties, they arrested 
him. Then, in the name of lofty principles, in the sacred name 
of personal liberty, the thief or murderer is released on his 
own parole, just as in a former day a gentleman was set free 
on his word of honor. And now, two years after the event, 
the police are again required to find in some hidden corner of 

1 Ante, p. 195. 


§ 4] DEFECTS OF EXISTING CRIMINAL PROCEDURE 353 


one of our modern Babylons, an obscure scoundrel whose mem- 
ory has long since been forgotten, in order that he be made to 
undergo the three or six months’ imprisonment to which he 
has been sentenced. Could anything be more ridiculous? ! 

When, however, the punishment involved is of as short a 
duration as this, the offender will not trouble himself much to 
hide from the police. What matters to him these few weeks 
of enforced inactivity? In winter the peasant criminal really 
welcomes such a punishment, for it means a money saving to 
him at a season when his labor is unproductive. But a man 
in good health who has been sentenced to two or three years 
in prison, is not apt to be solicitous about knocking on the 
prison door, especially if he has some money in his pocket. 
What is then to be said of the case where the perpetrator of 
some swindle of enormous proportions or of some theft 
amounting to hundreds of thousands of francs, having been 
sentenced, pursuant to the verdict of the jury, to a punishment 
merely correctional (a situation of frequent occurrence in 
Italy), is released pending proceedings on appeal or review? 
Is it at all likely that he will appear and obey the law? Every 
one knows that with two or three hundred thousand francs 
in his possession, such a man can laugh at all pursuit, assume 
whatever name he pleases, and, free from molestation, live 
surrounded by the respect of his neighbors. 

In short, we find that the practice of granting provisional 
release is the most vicious of all the institutions of our criminal 
law, directly counteracting as it does the activities of repres- 
sion. It directly encourages the criminal element; it discour- 
ages the injured person and the witnesses; it demoralizes 
the police. The absurdity reaches its height when the offender 
is released after a judgment in first instance has been arrived 
at, but the reign of unreason becomes inexplicable when, after 
his appeal has been dismissed, he is still permitted to remain 


1 In this paragraph I have had especially in view the law of Italy, accord- 
ing to which provisional release is in most cases of misdemeanors (“délits’’) 
a right of the accused. 


354 CRIMINOLOGY [$ 4 


at large pending proceedings in review, begun for the sole pur- 
pose of gaining time. Finally, there is no room for any such 
institution in the system proposed in this book. The cases 
in which imprisonment pending prosecution (“détention 
préventif”’) is a necessary measure have already been seen. 
Provisional release, therefore, is not to be considered except 
where the magistrate charged with the judicial investigation 
deems the evidence insufficient. But when there is reason to 
believe that the offender will be adjudged deserving of elim- 
ination, no manner of bail can serve. For the thing here neces- 
sary is that society rid itself of the noxious element, and in 
effecting this it cannot await the criminal’s good pleasure or 
count upon his spirit of obedience and resignation. 

With respect to the rare case of unjust detention, where the 
innocence of the accused has been completely established, I 
have no hesitation in urging, as many others have done, that 
the State make proper compensation to this victim of deceitful 
appearances. The right to such indemnity once recognized, 
there would no longer be any occasion for the outcries usually 
evoked by an error of this sort. In the first place, the situa- 
tion is not one of an intolerable or irreparable injury, but of a 
disagreeable accident, the mere acknowledgment of which is in 
itself reparation for a really honest man. Again, the accused 
himself in most cases is to blame for the mistake, because of 
his imprudence, his lightmindedness, his eccentric conduct, 
or the bad company with which he has associated: it is 
very seldom that the fault lies solely with the police. It 
is therefore just that the part which the accused has himself 
contributed to the creation of suspicion against him should 
be taken into consideration in fixing the amount of the in- 
demnity. What we are unable to understand is why, because 
of a few isolated cases, a trifling number of easily remedied 
judicial errors, any such measure should be proposed as that 
of doing away altogether with imprisonment pending prosecu- 
tion — a step which can only mean the impairment of repres- 
sion and impunity for a multitude of criminals. 


§ 5] DEFECTS OF EXISTING CRIMINAL PROCEDURE 355 
§ 5. Criminal Trials; the Jury 


Something must now be said as to the mode of adjudication 
in criminal matters. The strictly juridical character given 
to the repressive function has resulted in the criminal trial 
bearing an artificial and misleading resemblance to the trial 
of acivil cause. In the latter, there is a plaintiff and defendant; 
in the former the Public Ministry ' takes the place of the plain- 
tiff: it plays the part of creditor, exacting payment, under the 
form of punishment, of the debt owed by the accused. The 
court in case of conviction finds that the claim is a valid one, 
and declares what the accused must pay to square his account 
with society. 

Shortsighted progressives maintain that there is nothing 
more admirable than this system of accusation. They would 
even reconstitute it on a purely accusatory basis and turn the 
trial into a genuine combat in which the eloquence of opposing 
counsel is made to do service for the weapons employed in the 
most barbarous centuries of the Middle Ages. As one author 
has observed: “The peculiar nature of the system of accusation 
consists in this, that it always proceeds on the theory of an 
antagonism between two parties and consequently has in 
view the verification of and conformity to, not an absolute, 
but only a relative certainty. The question is not whether the 
man is innocent or guilty but whether one side or the other 
has won. The gage of battle has become the bail-bond, the 
challenger the accuser, the challenged the accused, the peers 
the jurors — to the clash of arms has succeeded the clash of 
words, —but the primitive character of combat always remains 
the same.” All the features of this system “bear witness that 
the matter is not so much a public function as a private ques- 
tion. . . . The system of investigation introduced by the eccle- 
siastical tribunals during the Middle Ages and adopted in 


1 [“Ministére Public”: the collective designation of the officers of prose- 
cution. For France, see Stephen, “History of the Criminal Law of England,” 
I, pp. 524, 525. — Transt.]} 


356 CRIMINOLOGY [$5 


_ France by Louis XII, undeniably marked a step in advance, 
inasmuch as it recognized the real essential of procedure to 
be the critical and impartial search for the truth, and that this 
should be the object of every rational and lawful judicial 
proceeding.” ! 

That this system, especially in political matters, became the 
subject of abuses admits of no question. The one thing need- 
ful was the addition of guaranties for the accused and restric- 
tions upon the magistral authority. But instead, there took 
place, in the establishment of the grotesque institution of the 
jury and the according of an exaggerated importance to the oral 
character of the trial proceedings, what was little short of a 
return to the obsolete system of accusation. 

However conclusive the evidence against the accused, how- 
ever unimpeachable its character, its whole effect may vanish 
before some sudden impression which the art of a skillful 
advocate is capable of producing on the minds of the jurors. 
Every one admits, and foremost of all the legal profession, 
that the result of a trial in a Court of Assizes depends on sheer 
chance. And yet, although public opinion at least in Italy 
is decidedly hostile to this “prud’>hommesque”’” institution 
of the jury, not a voice has been raised in the legislature to 
demand its abolition. 

This is due to the supposition that it is inseparably con- 
nected with the political liberties of a country —a notion 
which is perhaps true in the case of England, where the jury 


1 P. Ellero, “Delle origini storiche del diritto di punire,” p. 18 (Bologna, 
Zanichelli). See also Henry Sumner Maine, “Ancient Law,” c.x. Cruppi, 
“La cour d’assises,” p. 150 (Paris, 1898), is to the same effect: “‘It is still 
the ancient ordeal, the judicial duel. The question is still one of skill, of war, 
of victory. Who will prove the more eloquent? Yesterday these warriors 
were armed with the halberd, today their weapon is speech; but this differ- 
ence between the two systems counts for little when we reflect on the remote- 
ness of both from a logical and rational search for the truth.” 

2 Tarde has so called it in praising the Italian positivists who “overwhelm 
it with ridicule”: “‘Positivisme et pénalité” (Archives de |’Anthropologie 
criminelle, 1887). See also “Philosophie pénale”’ by the same author, c. vir 
(Lyons, 1890) [American edition, “Penal Philosophy,” Criminal Science 
Series (Boston: Little, Brown & Co., 1912)]. 


§ 5] DEFECTS OF EXISTING CRIMINAL PROCEDURE 357 


is indigenous and traditional, but without common sense in 
the case of other countries which possess a magistracy ex- 
pressly created for the administration of justice. Then too, 
in the case of England, the character of the people, their small 
sympathy for criminals, their sternness and unyielding 
severity toward every infraction of law, render the institution 
still workable. Moreover, the English jury, unlike that in 
Continental countries, is called into service only where the 
accused pleads “not guilty,” or refuses to plead, in which case 
the plea of “not guilty” is entered for him. Again, its verdict 
must be unanimous. A single intelligent juror is thus enabled 
to render an ignorant majority powerless except to declare that 
an agreement cannot be reached. In the event of such dis- 
agreement there must be a new trial of the cause. And finally, 
its members are not allowed to separate or hold communica- 
tion with outsiders until their duty has been performed. 
The practice, common enough in the Latin countries, of seek- 
ing to influence corruptly the juror who returns to his home 
or goes to dine in a café between the sessions of a cause which 
may perhaps be protracted for ten days or more, has therefore 
no chance to exist. 

The injustices committed by the jury, for the most part, 
are due in reality to its ignorance, whether because of its 
inability to grasp the meaning of many legal terms and to 
appreciate the true significance and connection of the often 
numerous questions which are propounded to it,! or because 
of the lack of necessary aptitude for or experience in the 
critical labor of examining the evidence and weighing the 
arguments for and against, in a case where the fact of guilt 
does not appear at the first glance. Sometimes the jurors 
bring in a verdict of acquittal, as a protest against the govern- 
ment. This often occurs in Italy in the case of embezzlement 
of public moneys — the thief being turned loose for no other 


1 Here again is a difference between the English and the Continental 
jury. The former is only required to determine the general question of guilt, 
and returns a simple verdict of “Guilty” or “Not Guilty.” 


358 CRIMINOLOGY [$5 


reason than that of spiting the Minister of Finance. In 
the Courts of Assizes held in small cities, the jurors are gath- 
ered from different districts; they are lodged at the same hotel, 
and exposed to all sorts of influences. “When some orator of 
note, some advocate who figures in political life and enjoys 
popularity as a member of the Chamber of Deputies, under- 
takes the defense of a prisoner,” says Turiello, “even the 
most honest and intelligent members of the jury are unable 
to resist a contagion of admiration for his skill. Without 
properly understanding, or having had time to consider, 
they experience a sort of diffidence, they succumb to a feel- 
ing of respect for what, in this atmosphere, wears the appear- 
ance of talent. They lose sight of the issues in the spectacle, 
and just as a theater audience applauds the actor by clap- 
ping its hands, so they applaud the orator by their verdict; 
to examine the facts and find accordingly would appear dis- 
courteous. In short, whether it is due to his nervous sensi- 
bility or artistic impressionability, I am unable to see how 
the Italian, when called upon to act as judge, can help being 
emotionally affected, unless he has undergone a special 
training to prepare him for this function.” * 

It must further be added that the advocates very often 
employ all sorts of means to confuse the minds of the jurors, 
to create a doubt where the proof is clear. Sometimes, indeed, 
they go so far as to state to the jury facts which are purely 
imaginary. With us it is not forbidden, as it is in England, to 
play upon the emotions of the jury and arouse their sympathy 
for the lot of the accused and his family. An advocate may 
thus win his case by picturing the unhappy plight of the pris- 
oner’s wife and children in the event of his conviction: that 
the prisoner never had either or else has long since deserted 
them, is a matter of little consequence. Another advocate 
will tell you in accents of the utmost sincerity that the mother 
of the accused has been rendered insane by grief and is upon 
the point of death, while as a matter of fact she enjoys the 

1 Turiello, Governo e governati, c. 11 (Bologna, 1882). 


§ 5] DEFECTS OF EXISTING CRIMINAL PROCEDURE 359 


best of health and has long since disowned her precious son. 
The orator speaks with tears in his voice; he wrings his hands 
in token of despair; the president smiles; but the jury in 
its simplicity suffers itself to be imposed upon; it sees tragedy 
in what is downright farce.! 

Nor is this all. Besides the immense number of unjust 
verdicts of acquittal due either to inability to sift and weigh the 
evidence or else to the emotion of the moment, there are yet 
other instances where the result must be attributed to bad 
faith, timidity, or actual corruption. In Naples, for example, 
dread of the Camorra operates so strongly that it is almost 
impossible to get a jury to bring in a verdict of guilty against 
a member of this organization. Speaking of the unfortunate 
experiment with this institution tried by Spain in 1873-75, 
Manuel Silvela tells us that there were provinces where a 
conviction could never be obtained against any person with 
influential relations, “even though the crime involved was of 
the most serious character.” ? Sicilian juries frequently obey 
the behests of the Mafia. In Romagna, hatred of the Govern- 
ment often results in the acquittal of criminals who have 
murdered members of the Carbineer force.? And _ finally, 
the frequent acquittals everywhere occurring of persons of 
means — forgers, counterfeiters, or criminal bankrupts — 
have a sinister effect upon public morality, since so evidently 
due to the all-powerfulness of money. 

The permanent judge, it is true, is not always beyond the 
reach of corruption: he may also be accessible to fear or other 
influences. But he has a name to preserve, an honorable posi- 
tion to retain; from prudence, from necessity, he acquires 
courage and firmness, for the slightest breath of suspicion 

1 “The taste for development of the oratorica] art is the natural product 
of the judicial machinery as constituted at the present day. Asa mill produces 
flour this mechanism produces rhetoric. To modify the product would require 
the re-modeling of the machinery as a whole.” Cruppit, “La cour d’assises,” 
p. 168 (Paris, 1898). : 

2 Manuel Silvela, “Le jury criminal en Espagne,” pp. 41, 42 (Montpellier, 


1884). 
* [“‘Carabinieri” : Italian military police. — Transt.] 


360 CRIMINOLOGY [$5 


may suffice to accomplish his ruin. Hence, scandals from 
this cause will never be common, nor of so startling 
a nature as those which the jury every day compels us 
to witness. 

In some provinces there are jurors who have a fixed scale 
of charges, with one price for acquittal and another for the 
admission of extenuating circumstances. An instance is 
reported where a Sicilian juror complained to a member of the 
Chamber of Deputies that a certain trial had yielded no 
pecuniary benefit to the members of the jury.!_ Cases have 
often occurred where the jury has convicted poor accomplices 
and acquitted the real authors of the crime who were people 
possessed of means. In the South of Italy, where rich men 
sometimes commit crimes of bloodshed from motives of re- 
venge, the feeling is general, in every instance, that a convic- 
tion will never be reached, and very seldom is it mistaken. 
“At Potenza on December 16, 1879, an adulterous woman 
and her paramour were on trial for the murder of her husband. 
Although both had confessed, a dinner had been prepared 
at one of the hotels in expectation of their acquittal. Nor was 
the expectation disappointed, for in point of fact, after the 
conclusion of the trial, the accused, the jurors, and the audi- 
ence which in the court room had applauded the verdict of 
acquittal, all gathered at the appointed place to celebrate 
the event.’’? 

We are assured that in France the jurors generally do their 
duty. Perhaps the truth is that they have only a little more 
regard for appearances. Certain noted criminal trials which 
we recall to mind are not calculated to give us a very high 
idea of the French jury. Among others there is the case of the 
Marquis de N. who was accused of carrying off to a distant 
place the illegitimate child of his wife, and throwing it from 
the top of a cliff to the rocks below, where its dead body was 


1 “Relazione della Giunta parlementare per I’ inchiesta sulle condizioni 
della Sicilia” (Rome, 1876). 
2 Turiello, op. cit., p. 338. 


§ 5] DEFECTS OF EXISTING CRIMINAL PROCEDURE 361 


found. Nor have we forgotten the wholesale verdict of 
acquittal following the occurrence at Aiguesmortes —the case 
in which, under the pretext that they had conspired to lower 
wages, some fifteen Italians were set upon and deliberately 
clubbed to death by their French fellow-workmen. Moreover, 
in France as in Italy extenuating circumstances are always 
found in the case of passionate crimes, and when the accused 
is a woman her acquittal is a foregone conclusion. 

Complaint is made of the jury everywhere. In British 
India a large number of crimes go unpunished, and, as Brigh- 
ton tells us, the most shameful manner of corruption is there 
practised. The Chief Justice of the High Court at Allahabad 
has declared that the only way to reform this institution is to 
abolish it. 

But if I were to undertake the collection of examples, vol- 
umes would be required to contain the thousands which might 
be adduced. No doubt just and equitable verdicts are some- 
times returned, but this, which should be the rule, has become 
the exception. The result is that even where the evidence is 
absolutely conclusive, there is reason to fear that the offender 
will escape. In such a case we await the verdict with no less 
anxiety than in one where there may be room for doubt: 
we are always apprehensive of some blunder, some extrava- 
gant miscarriage of justice. This fact goes to show that we are 
without the least confidence in the integrity or intelligence of 
the jury. And is it not clear that such lack of confidence 
betokens a probability that the criminal will go unpunished — 
a probability which cannot fail to be an encouragement to 
malefactors? Certain it is, that when the Government is 
really interested in securing obedience to any law, it loses 
no time in divesting the Court of Assizes of jurisdiction over 
the particular violation involved. Have we not here an 
obvious recognition of the weakness and uncertainty of re- 
pression when exercised by means of the jury? 

When the jury has not been influenced by illicit means and 

1 The Times, London, 4 November, 1903. 


362 CRIMINOLOGY [$5 


has been kept under close supervision throughout the trial, 
the ability and discernment of the judge, his clearness in put- 
ting the questions, and his patience in explaining them in the 
smallest details, will often bring about a reasonable verdict. 
But under such circumstances a criminal trial becomes a labor 
of Hercules. One might well exclaim with an Italian publicist: 
“What manner of judges are these, whom we are continually 
required, at great cost of time and by means of a complicated 
mechanism of forms, to watch, to guard, to instruct, to warn, 
lest they mistake what they are to decide, fall a prey to 
corrupting influences, or make of themselves a laughing 
stock!”! 

To the argument often made that jury service is an excellent 
school for the citizen, a sufficient answer is that contained in 
Silvela’s notable discussion of the criminal jury in Spain: 
“If it be said that the jury is a school of instruction, is this 
not an acknowledgment that its pupils do not gain proficiency 
without making mistakes? What sort of respect can we have 
for an institution which turns the temple of justice into a 
training school? Is it a part of the jurors’ education that they 
should sometimes convict unjustly? The unfortunate accused 
would have difficulty in reconciling himself with this view. 
Or are they to learn by degrees and begin by acquitting the 
offender whether innocent or guilty? Here society me 
scarcely be expected to acquiesce.” 

Again, it is said that the jury represents the people, and that, 
good or bad, the people will thus obtain the kind of justice it 
deserves. It must be admitted that this idea is thoroughly 
substantiated by the facts. For the jury, in reality, is the 
faithful interpreter of all the prejudices, political, social, re- 
ligious, or anti-religious, which hold sway over a people ata 
given period. Where the popular novels in local favor rec- 
ommend the husband to kill the wife who has transgressed 
her marriage vows, juries never fail to recognize the excellence 

1 Pavia, “Studii sulla criminalit& italiana nel 1881” (Archivio di psichia- 
tria, scienze penali, etc., Vol. IV. No. 1,— Turin, Bocca). 


§ 5] DEFECTS OF EXISTING CRIMINAL PROCEDURE 363 


of this advice by acquitting the slayer. So, in those parts of 
the country where a woman cannot dispose of her affections 
without the consent of all the men of her family, her father, 
brothers, and uncles, and according to the prevailing preju- 
dice, deserves death if she disobeys, there the jury as the 
representative of the people invariably acquits the murderer 
amid the applause of the spectators. The truth of these 
statements is indisputable. 

The one question which goes to the heart of the matter is 
this: Is it possible for such an institution to contribute to 
popular education? Is it calculated to milden the ferocious 
sentiments which prevail among certain peoples of a retarded 
civilization? What if the British had established the jury 
system among the cannibal Maoris and had tried the offense 
of cannibalism by a jury composed of natives? The principle 
involved is exactly the same, when we submit cases of murder 
to a jury chosen from among a people who excuse murders 
arising from passion or provocation. 

That a people is not capable of administering justice is no 
reason for depriving it of justice. Whether deserving or not, 
it should have justice imposed upon it, for otherwise it will 
never attain a higher plane of civilization. What is needed 
to overcome its barbarous customs is not a jury, but judges 
who do not represent this people, who have neither its pas- 
sions nor prejudices, who, in a word, do not resemble it at all. 

Finally, there is the contention that the jury constitutes for 
the citizen a guaranty against abuses of authority. This argu- 
ment is one which at the most deserves consideration only so 
far as political matters are concerned: applied to the case of 
ordinary crimes it is simply ludicrous. It would require a 
powerful effort of imagination to suppose a Minister of Justice 
furiously bent upon the prosecution of honest citizens, — 
corrupting magistrates to protect the real authors of theft, 
incendiarism, and murder, and to convict in their stead 
respectable persons entirely innocent of any such crimes, 
No government has ever availed itself of such weapons, even 


364 CRIMINOLOGY [$6 


against its worst enemies. Sometimes under despotic govern- 
ments, imaginary conspiracies invented by a too zealous 
police have been the subject of prosecution, but the practice 
of throwing citizens in jail on false accusations of infamous 
crimes, is something which has never yet been witnessed. 
What modern State would.be likely to resort to means so 
disgraceful and at the same time so open to immediate ex- 
posure? But assume for the moment that the case is possible. 
Is it to be supposed that the twelve obscure citizens composing 
the jury would be any less open than permanent judges to 
corruption on the part of the government? The history of the 
jury in its relation to political questions justifies the opposite 
belief. In England in the 1500s and 1600s, and in France 
during the Revolution and the Restoration, the jury almost 
always proved the faithful servitor of the most powerful: 
it bent the knee to every species of tyranny, that of the throne 
as well as that of the populace.! 


§ 6. Criminal Trials; the Judges 


In urging the doing away with the criminal jury, we are 
very far from advocating that for triers recourse should be had 
to jurists whose scientific equipment consists in the main of 
maxims from the Digest. However valuable such a knowledge 
may be in dealing with civil cases, it is of little or no use when 
the matter in hand is the judging and classifying of criminals. 
Of all the officers of the government, the judges of the present 
day are perhaps the least fitted for this work. Accustomed by 
the nature of their studies to regard human things from an 
abstract standpoint, they are chiefly concerned with formule. 
The civil law is completely indifferent to everything relating 
to the moral and physical nature: the validity of a debt is 
wholly uninfluenced by the goodness or wickedness of the 
creditor. This strictly juridical character is in no way to be 
predicated of criminal science, the object of which is to combat 


1 See on this subject De Novellis, “Tl giuri”’ (Naples, 1885). 


§ 6] DEFECTS OF EXISTING CRIMINAL PROCEDURE 365 


a social disease, that is to say, crime. The two branches have 
but few points of contact: as we view them, they constitute 
two entirely distinct sciences. Why, then, should we employ 
the same officials in two departments of the public service 
which are essentially foreign to each other? The member of a 
civil tribunal who is called upon to preside at a criminal trial 
retains all his habits of mind. His attention is directed not to 
the individual but to the legal definition of the fact. He is 
concerned only with the interest of the law: the social interest 
escapes him. The operation which he performs in imposing 
punishment is almost mechanical. He proceeds by the use of 
arithmetic. He counts up the circumstances, adds them or 
subtracts some from the others, and to the result applies the 
scale which he finds ready to hand. The too general scale of 
the codes has been worked out in detail by what is known as 
the judicial law (“jurisprudence’’) of the court, — resort 
to which is a most convenient means of avoiding the trouble 
of examining and appraising new facts as they arise. And 
finally, the judge easily forgets that in the infliction of punish- 
ment the prime consideration is that it ought to be of some use; 
that utility is to be attained by means varying with the 
individual; and that, therefore, it is precisely the examination 
of the individual, by which the kind and measure of punish- 
ment ought to be determined. 

The renovation of criminal science for which we contend, 
and which consists principally in the classification of criminals 
from a psychologic standpoint, naturally entails a distinction 
still more fundamental between the qualifications requisite 
for the two offices of civil and criminal judge. Criminal judges 
ought especially to be equipped with a knowledge of statistics 
and penitentiary systems, as well as of criminal anthropology 
and psychology. They ought therefore to constitute a corps 
apart from that of the civil judges. For the analogy between 
the functions of the two is merely specious and superficial, 
and an externality of this sort is clearly not the test for deter- 
mining the true character of a function. 


q 


366 CRIMINOLOGY [$7 


§ 7. Prescription of Criminal Actions 


Another favor which the law extends to offenders is the pre- 
scription of criminal actions. We can understand the reason 
for prescription in civil cases. When for a given period of time 
a plaintiff has neglected to assert his rights, a tacit relinquish- 
ment of such rights must be presumed, in order to prevent the 
subsequent disturbance of new rights which another enjoys 
in good faith. But when we have to do with a crime, is it any 
reason for not molesting the criminal, that he has been suc- 
cessful for a given period of time in keeping out of the hands of 
the police? — And yet, this is exactly the theory upon which 
proceed all the codes, in sanctioning the prescription of prose- 
cution after the lapse of five, ten, or twenty years, according 
as the offense is a misdemeanor (“délit”’) or a felony (“crime’’) 
of greater or less seriousness. Notice, then, how the law 
extends its protection to the enemy of society. After some 
notable exploit, a clever swindler changes his name and re- 
moves to a new field of operations. Finally caught, if five 
years have elapsed since his first offenses, he can be prosecuted 
only for the later ones. And if for lack of evidence he cannot 
be convicted of these, then searpinis he must be restored to his 
nefarious calling! 

This is not to say, however, that prescription in the case of 
crime should be altogether abolished. It should be retained, 
but only in certain cases where the conduct of the agent has 
furnished proof that he is not an anti-social being, and where 
a supervening change in the conditions which determined the 
crime, renders improbable the occasion of its future manifes- 
tation. Suppose, for example, that idleness and poverty are 
the determining cause of a crime against property, but that the 
offender, successful in eluding the police, is discovered only 
at the end of five or ten years in the course of which, like 
Jean Valjean in “Les Misérables,” he has undergone a moral 
transformation and become an honest workman whose 
probity is recognized throughout the neighborhood. Such a 


§ 8] DEFECTS OF EXISTING CRIMINAL PROCEDURE 367 


case might occur once in a thousand times, but if by chance 
it presented, would not all agree that punishment is no longer 
necessary, that its imposition would be a useless cruelty and 
that all that should be required is the reparation of the 
damage? The same thing substantially would be true in the 
case of certain aggressions upon the person such as strikings 
and woundings (“coups et blessures”), offenses against 
chastity, etc., where the agent’s subsequent good behavior 
and the mature age which he has reached combine to guaranty 
society against the repetition of his one criminal act. And 
it would be true, again, in the case of all offenses committed 
by men who are not habitual malefactors, where, in other 
words, the offender falls into the intermediate zone which we 
have mentioned as existing between the class of true criminals 
and that of honest men. 

It is a principle recognized by the criminal law of certain 
countries that the fact of recidivism interrupts prescription of 
the punishment. The thing for us to do is to lay hold of this 
principle, or rather of its spirit, and utilize it in the case of pre- 
scription of the action, where, that is to say, no sentence of 
punishment has been rendered, substituting for the negative 
element, viz., the absence of a fresh offense, a positive element, 
viz., proof that the offender has undergone a moral trans- 
formation. Such a rule would naturally prevent any pre- 
scription in the case of instinctive criminals of the murderous 
type, whose active perversity is not susceptible of amend- 
ment. And then we would no longer be compelled to endure 
the repellent spectacle of malefactors living in the very theater 
of their sanguinary deeds, secure from disturbance by the 
sole fact that some ten years have gone by since the act was 
committed. 


§ 8. Prescription of Punishments 


Similar considerations will serve for the solution of the prob- 
lem presented by prescription of the punishment — an institu- 


368 CRIMINOLOGY [$9 


tion provided for by some of the codes and unrecognized by 
others. Here, quite as strongly as in the preceding case, the 
positivist theory is opposed to any absolute rule. It would have 
the individual case decided by the requirements of social de- 
fense. It would apply the principle that when time has 
worked the moral transformation of the offender and made him 
a useful and socially adaptable being, then the object of 
punishment fails. The criminal whose subsequent conduct 
has confirmed the diagnosis of his incorrigibility, it would 
therefore exclude from all benefit of prescription.! 


§ 9. Executive Clemency 


A further means made use of by the State for the protection 
of criminals is the exercise of the pardoning power. The 
granting of a pardon is an act of generosity understandable 
in the case of offenses which are such because forbidden by the 
government, as, €.g., political crimes and violations of finan- 
cial and administrative regulations; no one would question 
the government’s right to overlook what is an injury only to 
itself. But we are unable to conceive by what right the 
government can pardon an injury occasioned to society as a 
whole through an act forbidden by the natural laws of the 
social organism which this very government exists for the 
purpose of protecting. It is a mystery how this power of par- 
doning has managed to survive all the other irrational pre- 


1 In a notable monograph (“La dottrina morale nel diritto penale” — 
(Turin, 1902), Carnevale declines to admit that a greater or less lapse of time 
is capable of annulling the fact of a crime, or that in such a case the absolute 
impunity of dangerous criminals is reconcilable with the moral sentiments of a 
civilized nation. We contribute entirely too much to the offender’s chances 
of impunity. A self-respecting State which is cognizant of its duties ought 
to direct all its efforts toward minimizing these chances instead of conducing 
to their augmentation by institutions such as that of prescription in criminal 
matters. It is not, however, this author’s view that the lapse of a very long 
period of time between the commission of the crime and the arrest of the crim- 
inal should be entirely without effect. Only he believes that, so far at least as 
the more serious crimes are concerned, the effect should not extend beyond a 
reduction of the term of punishment or the substitution of a different punish- 
ment appropriate to the new conditions of fact which have come into existence. 


§ 9] DEFECTS OF EXISTING CRIMINAL PROCEDURE 369 


rogatives which have given way before the progress of 
institutions. 

Amnesty, that is to say, the wholesale pardoning of an entire 
class of persons guilty of ordinary crimes, is something which 
for strangeness cannot be exceeded. The State in effect says 
to the offender: “The thing which you did was yesterday a 
crime; it will be a crime tomorrow, but for today only, we 
shall not regard it as such.” For amnesty cancels the crime 
itself. However humorous this formula may appear, it 
nevertheless serves to obliterate from the record-sheet 
(“casier judiciaire’’) of the criminal every trace of his mis- 
deed, so that the recidivist ceases to be a recidivist by the 
fact of the government so deciding. At the present day, 
fortunately, this right of granting amnesty is seldom abused 
in the most enlightened countries. It is to be hoped, however, 
that the time is not far distant when the institution itself 
will have disappeared. 

The case is otherwise as to the right to grant individual 
pardons affecting only the matter of punishment. This right 
is one which we find established under all forms of government, 
in republics as well as in monarchies. In the former, however, 
it takes on the appearance of a review of the proceedings by 
the Chief Executive, in the most serious cases, for the purpose 
of preventing the execution of the death penalty where there is 
reason to suppose that the verdict of the jury was wrong or 
unduly severe. Thus limited, the pardoning power ought to 
be preserved, for after all it is nothing more than an additional 
cog in the judicial machinery, useful, perhaps, in extreme cases. 

But, inexplicable as it may seem, there are many countries 
where this conception of the pardoning power does not pre- 
vail — where it retains all its early significance as an act of 
clemency, of generosity, of remission. It is an act deemed in 
nowise inconsistent with the object of punishment, and this 
simply because of the unwillingness to understand that the 
latter is not an act of vengeance, but merely one of the means 
which must be employed in the struggle against crime. 


370 CRIMINOLOGY [$9 


In simple justice, the government ought to assume respon- 
sibility for fresh offenses committed by criminals whom it has 
pardoned. It ought at least to make reparation for the damage 
which in the absence of its ill-advised act of clemency would 
in all likelihood not have been occasioned; but supposing that 
it was so inclined, how could it make reparation for a new tak- 
ing of human life? For, to say nothing of the depredations 
committed by offenders whom the negligence of government 
officers has suffered to escape from prison, — and in some coun- 
tries this is a very frequent occurrence, — the case is not rare 
of pardoned murderers killing some unfortunate turnkey, 
some gendarme placed in charge of their transportation, some 
prisoner less guilty than themselves. A singular sort of gen- 
erosity this which enables the man-slayer to continue his 
killing! 

And yet we find some governments consistently refusing to 
authorize the execution of capital sentences. Belgium, since 
1863, is a case in point. Such a course of action did not appeal 
to King Oscar of Sweden, when in 1875 he was asked to com- 
mute the sentences of two men who had been sentenced to 
death for robbery and murder. He said that in such a case 
the exercise of the pardoning power would mean nothing else 
than the abolition of the death penalty established by law. 
“Now,” he added, “regardless of my personal views as to the 
justice and expediency of the death penalty in general, it is 
my firm conviction that I have no right, by exercising the 
pardoning power in cases of this character, to override a law 
which has been adopted by the common consent of King and 
Parliament.” ! 

This distinguished utterance leaves nothing unsaid. As- 
sailed by great thinkers such as Rousseau, Beccaria, and 
Filangieri, the pardoning power is plainly incompatible with 
the theory for which we stand. For us, the criminal judg- 
ment is the designation of the type of the offender under 


1 Beltrani-Scalia, “La riforma penitenziaria in Italia,” p. 241 (Rome, 
1880). 


§ 9] DEFECTS OF EXISTING CRIMINAL PROCEDURE 371 


examination, the punishment the means of social defense 
which the case requires. Nothing could be more just than 
that there should be provision for a review of the case by a 
higher court of justice or by the Chief Executive himself, 
when public opinion is convinced of the convicted man’s 
innocence. Such a review may even be granted, as useful and 
equitable, where the punishment seems excessively severe. 
But that the Chief Executive should have the right to set at 
naught society’s means of defense against its natural enemies 
— how can this in anywise be admitted? The pardoning of a 
dangerous criminal is a violation of the citizens’ right to be 
forever rid of his presence. Under present conditions the fact 
that an individual has been found inadaptable, counts for 
nothing. The first thing we know, the government steps in 
with a pardon and makes him a present of his lacking social 
capacity. Are not such acts of generosity something worse 
than State-organized charity, the only effect of which, as 
Spencer has abundantly demonstrated, is to encourage the 
vagabond while impoverishing the honest workman? 


CHAPTER IV 


Tue RatTIoNAL System OF PUNISHMENT 


The Punishment of Murderers. 
The Punishment of Violent Criminals. 
(a) Homicidal Offenders. 
(b) Offenders Guilty of Acts of Serious Physical or Moral Cruelty. 
(ec) Youthful Offenders. 
(d) Offenders Deficient only in Moral Training or Restraint. 
§ 3. The Punishment of Criminals Deficient in Probity. 
(a) Instinctive and Habitual Offenders. 
(6b) Non-Habitual Offenders. 
§ 4. The Punishment of Lascivious Criminals. 
§ 5. Cases for Retention of Existing Punishments.! 


CO? CH 
tl el 


In the three preceding chapters we have pointed out the 
corollaries to which the principles contended for give rise with 
respect to guilt in general, criminal attempt, criminal partici- 
pation, recidivism, procedure, and prescription. All that now 
remains is to show the practical application of the idoneity 
test as a substitute for the criteria of moral responsibility 
and penal proportion — to indicate, in other words, the means 
of repression suited to the different classes of criminals. 

To that end, the reader is asked to bear in mind the classi- 
fication outlined in our chapter on “Criminal Anomaly” ? 
as well as the considerations advanced in discussing the 
“Law of Adaptation.” ® 


§ 1. The Punishment of Murderers 


Following, then, the order of this classification, we meet 
first with the extreme, typical criminals — men who are desti- 


1 [§ 2 (a) = § II of original; § 2 (b) = § TIT; § 2 (c) = § IV; §2 (d) = 
§ VI; § 3 (a) = § VU; §3 (b) = § VIII; §4=§ V; and §5 = § IX. — 
TRANSL] 

2 Ante, Part II, c. 1. 3 Ante, Part III, ec. 1. 


§ 1] THE RATIONAL SYSTEM OF PUNISHMENT 373 


tute of moral sense and hence of the sentiment of pity even 
in its lowest terms. In certain cases this fundamental char- 
acteristic appears at the first glance from the very nature of 
the crime, which of itself suffices to denote such congenital 
psychic anomaly in the agent as to render him incapable of 
assimilation in a human aggregation. The cases in question 
are those of murders which could only have been the result of 
innate and instinctive cruelty — a trait always abnormal in 
any social class or environment. For criminals of this sort, 
we have employed a designation sanctioned by usage, namely, 
that of murderers. 

Sometimes it is the motive of the crime, sometimes the 
manner of its execution, which constitutes the principal sign 
of moral monstrosity in these offenders. 

First Category: Motive as Index.— Thus every murder 
which is committed for a purely egoistic end — such as that 
of procuring money, power, or favor, sexual gratification, the 
concealment of a previous fault or any other gain, advantage 
or pleasure — furnishes proof, no matter how depraved the 
criminal’s environment, of his exceptional perversity or utter 
lack of the altruistic sentiments. With murders of this last 
description are to be grouped those cases of taking human life, 
where the motive is the gratification of some monstrous desire. 
Murder accompanying rape is an instance of the kind, as is 
also murder committed solely to enjoy the sight of blood and 
mangled flesh. Then come cases where the victim has done 
nothing to deserve the hatred or arouse the anger of the 
murderer, or where on account of ties of blood or benefits 
received, what the murderer regarded as provocation would 
not have been provocationfor anormal man. Such, in general, 
is the crime of parricide, for even a distinct wrong, sustained 
at a father’s hand, does not impel the normal man to revenge 
himself by an act of bloodshed. Such, too, is the murder of 
a benefactor or a person to whom the slayer owes respect and 
obedience. .And of this type, lastly, is the case where some 
inoffensive stranger is killed, from no other motive than the 


374. : CRIMINOLOGY [$1 


murderer’s desire to exhibit his physical prowess or his skill 
in the handling of weapons. These various manifestations 
of brutality — still prevalent among savages but of rare 
occurrence among civilized peoples —are all related by a 
common feature, namely, the absence of any conduct on the 
part of the victim capable of producing a reaction on the 
part of a normal man, or in other words, the absence of what 
for the normal man would be an injury or sensible injustice. 
Second Category: Mode of Execution as Index. — A second 
category of murderers is characterized by the manner in which 
the crime is committed. Where the murder is attended by 
torture, where the criminal intentionally prolongs the suffer- 
ing which he is inflicting, we may always be sure of his innate 
cruelty, — for no normal man could withstand the sound of 
the victim’s groans, or the sight of his agonized writhing. 
The fact of torture is in itself sufficient proof of the complete 
absence of the sentiment of pity, even where the intention 
to take life does not clearly appear. For this reason the 
French Code is right when it applies the term “murder” 
(“assassinat’’) to any species of crime which in its execution 
has involved the deliberate infliction of physical cruelty 
(“sévices sur le corps de la victime’’).! . 
Premeditation not a Certain Criterion of Anomaly. — It 
may not be out of place to remind the reader that we have 
made no use of the criterion of premeditation, which has 
become dominant in the theory of the juridical school, as the 
means of distinguishing the most serious offenses against 
human life. The character of murderer does not depend on the 
length of reflection. The speed with which the act follows the 
resolution has nothing to do with the corrigibility or incorrigi- 
bility of the agent. Immediateness of action is not incompa- 
tible with the completest absence of the moral sense. On the 
other hand, there are cases where theslayeris not atypical crim- 
inal, although he has had time for reflection. This may occur 


1 This provision was followed in the Sardinian Code, but, needless to say, 
is condemned by contemporary Italian jurists. 


§ 1] THE RATIONAL SYSTEM OF PUNISHMENT 375 


when he has experienced some grievous injury, some outra- 
geous wrong which has poisoned his own life and that of his 
family, or where he is convinced that vengeance is for him a 
sacred duty. Premeditation, moreover, does not signify 
the non-existence of passion, for the degree of swiftness with 
which this is manifested, is something that depends upon the 
individual temperament.! 

Sometimes the murder, although unpremeditated, is never- 
theless the sure sign of an instinctive cruelty, as when there 
has been no provocation on the part of the victim. “The 
extreme, violent criminals,” says Despine, “are quite as 
destitute of moral sentiments as those who commit crime in 
cold blood.” 2 Suppose that a man who already sustains a 
reputation for violence is spending the evening in a tavern. 
In a moment of ill-humor he picks a quarrel with the first 
person at hand, perhaps a table-companion, — insults him, 
strikes him and when goaded into retaliation the victim flings 
a glass at the head of his tormentor, the latter draws his pistol 
and shoots him down. In such a case, we may very well have 
a criminal presenting the psychologic characteristics of the 
murderer, notwithstanding that the deed is instantaneous and 
unpremeditated. 

One thing, however, is undeniable, namely, that the cir- 
cumstance of unmerited and absolutely intolerable provoca- 
tion shows the murderer’s manner of feeling to approximate 
that of the generality of men, and, in most cases, prevents us 
from attributing to him an excessively abnormal character. 
Circumstances of this sort may be met with in premeditated 
crimes as well as in those committed on an instantaneous 
impulse. The fact of premeditation is therefore not always a 
sign of the psychologic anomaly which distinguishes the 
extreme criminals. In many instances a homicide may be 
the work of an individual belonging to the murderer class, 

1 Von Holtzendorff, “Psychologie des Mordes” (Berlin, 1875). See also, 
“Das Verbrechen des Mordes und die Todesstrafe,” by the same author. 


2 Despine, “De la folie au point de vue philosophique et plus spécialement 
physiologique,” p. 39. 


376 CRIMINOLOGY [$1 


despite the absence of premeditation, while there are other 
cases in which the opposite would be true. 

Our conclusion, then, is that the cruelty with which the 
murder has been committed and the absence of grave provoca- 
tion on the part of the victim, are the two criteria which ought 
to be substituted for that of premeditation. By their means, 
we shall be enabled to distinguish from other homicidal crim- 
inals, those whom we have called murderers, that is to say, 
the extreme, instinctive, or typical criminals who may be 
regarded as beings morally degenerate in the last degree, and 
permanently incapable of sociability. 

Elimination by Death the Measure Necessary.—'The im- 
possibility of adaptation in the case of these offenders once 
recognized, absolute elimination is plainly required. It is 
inconceivable that the social power should even in a single 
instance suffer to exist the probability, however slender, of a 
monstrous act of this sort being repeated by the same offender. 
The death penalty alone will serve in the case of these extreme 
criminals. The only exception to its application will be in 
established cases of intellectual insanity, for reasons which 
have heretofore been given.! In such cases it will be necessary 
to confine the agent in an asylum for the criminal insane, 
from which he will not be discharged until there is complete 
certainty of his cure. 

So far as the death penalty itself is concerned, there is 
no need for undertaking its justification here. The matter has 
already been sufficiently discussed in other portions of this 
book. 

It is contended, however, that as a means of elimination, 
an adequate substitute for the death penalty is furnished by 
imprisonment for life, in that the latter prevents the criminal 
from reéntering society and renders his reproduction impos- 
sible. We must challenge the accuracy of this statement. 
In the first place, the number of escapes annually occurring 
proves that the elimination which life-imprisonment effects 

1 See ante, Part III, c. nu, § 3. 


§ 1] THE RATIONAL SYSTEM OF PUNISHMENT 377 


is not absolute.t Then, again, there is always a considerable 
number of contingencies such as prison mutinies, pardons, 
amnesties, etc., by the happening of which the criminal is 
thrown back upon society. And finally, it is not a matter of 
rare occurrence for life prisoners to murder their keepers or 
the gendarmes in charge of their transportation from one pen- 
itentiary to another.” 

The penitentiary, therefore, is not an absolute and irrevo- 
cable means of elimination. But even if it were, this fact 
would not be sufficient cause for giving it preference over the 
death penalty. We can see no good reason for keeping alive 
men who must be forever barred from society, — for conserv- 
ing an existence which is purely animal. Nor are we able to 
understand why the citizens of a state should be taxed for 
the purpose of affording food and shelter to permanent enemies 
of society.* 

Were the preceding considerations to be left entirely out of 
view, there is another yet more decisive. Assume that the 
two means of elimination — death and life-imprisonment — 
are equally absolute. Since we have to choose between them, 
why should we not decide in favor of the one which possesses 
the inestimable advantage of intimidation? We have, it is 
true, rejected intimidation as a criterion of punishment, in the 


1 In Italy there is an annual average of 15 escapes from the penitentiaries 
and of about 110 from other prisons. 

2 In one instance, a man who had been twice condemned to death and each 
time pardoned, committed a third homicide. A further case is that of a par- 
doned convict who killed a carbineer in the railroad station at Alessandria. 
In a third instance, the offender killed the director of the Favignana peniten- 
tiary (Beltrani-Scalia, “‘La riforma penitenziaria in Italia,” p. 250, Rome, 
1879). A prisoner who, serving a sentence in the same penitentiary, had 
attempted to kill one of the keepers was sentenced to life-imprisonment. 
When sentence was pronounced, he defiantly asserted in the presence of the 
court that it was his intention to carry out his purpose of taking the life of 
his keeper in whatever penitentiary he should be confined (Address of the 
Procurator General at Parma, — 1880). 

3 In the penitentiaries of Italy, on December 31, 1900, there were 3,041 
prisoners serving life sentences and 1,198 serving sentences of more than 24 
years (Prison Statistics, 1902). The expense which honest citizens are called 
upon to pay for the maintenance of this army of murderers may be roughly 
estimated at two millions of francs per annum. | 


378 CRIMINOLOGY [$1 


sense that we believe it unjust to inflict upon a man a graver 
evil than his individuality demands, in the sole end of example 
or terrorization. We have said that for each offender there 
must be employed the repressive means suited to his individual 
nature, according to the degree in which he lacks idoneity for 
the social life, — to the greater or less probability that he 
will become assimilable: otherwise extreme injustice and 
cruelties might be committed with a view to the prevention of 
crime. In the case in question, however, the offender is inca- 
pable of assimilation; he deserves to be eliminated; and. such 
elimination we find to be absolutely effected by means of the 
death penalty, without excess or injustice. It is now proposed 
to substitute for this means another of supposedly equal 
value. But, plainly, before giving up the first, we must see 
whether the other offers the same indirect advantages, — 
advantages which are not determinative but which neverthe- 
less ought to be given due weight. Such an advantage is 
intimidation. In the death penalty this is a natural effect; 
by punishments restrictive of liberty it is produced in a meas- 
ure incomparably less. 

On this point no doubt is possible. Although the gallows 
does not intimidate all malefactors, it strikes terror into a 
considerable number who are unaffected by the menace of 
imprisonment, whatever its duration. If the death penalty 
were capable of disarming all murderers, there would be 
no need for its application. But there can be no question 
that it disarms many. Moreover, when the State puts mur- 
derers to death, it can do no more. If, however, it fails to do 
all it can, it is responsible for the human lives which otherwise 
would not have been taken. When it is sought to do every- 
thing possible to prevent a given act, it is necessary to menace 
him who would commit the act, with the greatest possible 
harm. Loss of liberty is not the greatest possible harm, 
for life yet remains. When the State abolishes the punish- 
ment of death, it authorizes murder: it says to the criminal: 
“The risk that you run in killing a human being is a change 


§ 1] THE RATIONAL SYSTEM OF PUNISHMENT 379 


of abode, the necessity of spending your days in my house 
instead of your own.” In reality there is no abolition of the 
death penalty. In relinquishing its own right to inflict this 
punishment, the State thereby recognizes in others the 
right to take life. We are here confronted with a vicious circle. 
Is it not better that death be inflicted by the State than by 
individuals? That is the sole question. 

Furthermore, it must be noted that the influence of the 
death penalty is not restricted to the class of criminals which 
it directly menaces: it has a powerful effect even upon the 
lesser criminals, for the man who is tending to a career of 
crime has no exact knowledge of how far he can go, or what 
punishment his acts may involve. His consciousness, then, 
of the fact “that there exists a power capable of taking the 
life of certain malefactors”’ (he does not know precisely which), 
may become a motive sufficiently strong to paralyze his 
criminal inclinations.! 

History and statistics establish the truth of these assertions. 
In Belgium, as a Procurator General of that country has said, 
the belief that the death penalty was a thing of the past, 
induced among the masses by reason of the Government’s 
attitude toward capital sentences for some years prior to 
1850, was attended by an increase in the number of the more 
serious crimes dating from that year. And following the 
year 1863 which saw a return to the practice of systematic 
pardoning, the graver crimes multiplied “in an alarming 
manner, as belief in the abolition of the death penalty became 
more and more fixed in the popular mind.” ? In point of 
fact, from 1865 to 1880, prosecutions for murder increased 
from 34 to 120. 

As is well known, the formidable outbreak of brigandage 
which in the year 1861 occurred in the South of Italy was put 
down only by the summary shooting of convicted offenders. 
England, which has constantly employed hanging as a punish- 


1 Turiello, op. cit., c. II. 
2 As cited by Beltrani-Scalia, “La riforma penitenziaria in Italia.” 


380 CRIMINOLOGY [$1 


ment for murder, is the only country of Europe showing a 
sensible diminution of crime.! In Prussia, where for many 
years scarcely any executions have taken place, the criminal 
statistics exhibit a continual growth in the number of homi- 
cides during the period beginning with 1854 and ending with 
1880: from 242 in the former year, it rose by an uninterrupted 
progression to 518 in the latter. In Switzerland, as a result 
of the abolition of the death penalty in 1874, it has been ascer- 
tained that there ensued an increase in this crime estimated 
at 75% for five years alone ?— a circumstance which decided 
many of the Cantons to reéstablish the punishment in question. 

As for France, so long as capital sentences continued to be 
carried regularly into execution, the more serious forms of 
crime were on the decrease. But in 1878, President Grévy, 
apparently desirous of experimenting “in anima vili,” per- 
mitted but 7 executions, in 1880, but 2, while in 1881 he cut 
the number down to 1. As soon as this leniency was noticed 
by the criminal world, murders became more frequent. As 
against 31 capital sentences in 1877, there were 35 in 1880. 
Convictions for parricide, which had been 8 in 1878, increased 
to 14 in 1882. During this last-mentioned period the number 
of murders underwent an increase of 36. Since then, the cen- 
sure of public opinion has caused the pardoning power to be 
exercised more sparingly. Of the criminals sentenced to 
death between 1886 and 1900 almost half were executed, with 
the result of reducing the number of murders from 224 to 175. 

A correspondent writes me from Chile that with the practice 
there prevailing of systematically commuting the death 
penalty into that of 15 or 20 years of “presidio” there has 
kept pace an increase of murders and culpable homicides, 
these crimes from 1898 to 1902 showing an annual average of 
950, that is to say, 35 per 100,000 inhabitants. This extra- 
ordinary frequency of offenses against human life, adds my 
informant, renders colonization almost impossible. The peas- 


1 See ante, p. 202. 
2 Freuler, “Fiir die Todesstrafe,” p. 57 (Schaffhausen, 1879). 


§ 1] THE RATIONAL SYSTEM OF PUNISHMENT 381 


sants are kept in a continual state of fright and their chief 
concern is to get away from the country districts. Yet in 
spite of these conditions the newspapers and politicians still 
make it a point to preach “ assassinophily.’’! 

In Italy, where, except in the army, no executions have 
taken place since 1876, the more serious forms of crime have 
attained almost incredible proportions. Whereas in England 
the annual average of homicides is only 300, Italy, with an 
almost equal population, has an annual average of 3,814, 
of which nearly one-third are true cases of murder. Since 1892 
there has been little change in the figures, the number in 1899 
being 3,586. Perhaps the reason is that the criminal satura- 
tion has reached its maximum. Whether capital punishment 
exists or not, in no country are all the citizens likely to amuse 
themselves by cutting each other’s throats. The only thing 
is that with the death penalty absent, those who are inclined 
to this form of diversion have no longer any reason for 
hesitation. 

One or two examples in point may not be without value. 
In the city of Naples an officer of the fire department was 
murdered in cold blood by a subordinate toward whom he 
had shown many acts of kindness. The murderer’s confession 
showed that he was thoroughly convinced that the death 
penalty was not a thing to be reckoned with, since he declared 
that the motive of his crime was the desire to obtain food and 
shelter for the rest of his days, without the necessity of work- 
ing or begging. In 1884 occurred the case of the soldier, 
Misdea, who one night in the Pizzofalcone barracks at Naples, 
opened fire with a rifle upon his sleeping comrades, and 
continuing his murderous work for a quarter of an hour killed 
ten of them. Condemned to death by a military tribunal, 


1 My correspondent subjoins a curious detail. In Valparaiso, on the very 
day when the translation of my brochure attacking the abolition of the death 
penalty there appeared, an agitation was in progress to obtain the pardon of 
three convicted murderers, and not a single newspaper had the courage to 
announce the pamphlet’s publication for fear of hurting the cause of these 
offenders. 


382 CRIMINOLOGY [$2 


he refused to take his sentence seriously, because he was fully 
of the belief that executions were not possible in Italy. Some 
days after this massacre, certain other soldiers murdered their 
sergeants. All the offenders were shot. Since then, there has 
not been a single instance of the kind in the Italian army. 

If the fear of losing their lives is capable of influencing 
the conduct of men who from the nature of their calling are 
frequently required to face death, how can it be supposed 
that the same fear is without efficacy in the case of the popu- 
lation generally? 

Any efforts to realize the plan of Beccaria and make the 
conditions of life-imprisonment so rigorous as to instill terror, 
would be utterly useless.' In the first place, the infliction of 
the cruelties necessarily involved would be distasteful. Then 
again, anything we might do to impart to the penitentiary a 
terrifying aspect would have no effect beyond the sinister 
impression produced upon those who visited such establish- 
ments out of curiosity, for the prisoner’s despair does not echo 
beyond the walls of his dungeon. 


§ 2. The Punishment of Violent Criminals 
(a) HomicipaL OFFENDERS 


We turn now to the second class of criminals. With these, 
crime is chiefly due to the superficial stratum of the character, 
in which find lodgment false notions of honor or of the duty of 
vengeance or other prejudices often traditional in a family or 
in an entire social class. Criminals of this sort do not kill 
from motives of purely egoistic satisfaction. Their crimes are 
the effect of an ego-altruism — of “‘amour propre,” of what 
they conceive to be wounded honor, —or even of a true 
but misdirected altruism, as when they are actuated by politi- 
cal or religious prejudices. 

1 “Whoever has visited a penitentiary may flatter himself that he has 
seen a picture of contented crime (‘un tableau du crime heureaux’)” (Lau- 


vergne, “Les forgats,” cited by Aubry, “La contagion du meurtre” — Paris, 
F. Alcan, 1888). 


§ 2] THE RATIONAL SYSTEM OF PUNISHMENT 383 


As has already been indicated, the criminal’s anomaly is 
always in inverse ratio to the gravity of his provocation: the 
more serious the provocation, the less remote in his manner of 
feeling from that of normal men. The crime may thus assume 
the appearance of a reaction, legitimate in principle, but ex- 
cessive (and it is just this excess, be it noted, which establishes 
the fact of abnormality); the sentiments of the criminal, 
although exaggerated, may not be inexplicable. But for this, 
the provocation must be appreciable, it must be of such a 
nature as to constitute in itself an offense to the moral senti- 
ments. Everything which relates exclusively to the manner of 
feeling of the criminal individual must be left out of consider- 
ation, for it is precisely his psychic anomaly which makes him 
feel external impressions in an exaggerated fashion, causing 
the fact, which for others is almost indifferent, to become for 
him a serious injury, a wrong which cries for vengeance. 
It is therefore necessary that the provocation be such as would 
be regarded as real by the generality of men or, at least, of 
those belonging to the same social class or part of the country. 
Then and then only does the criminal approximate more or 
less the normal man, according to the gravity of the injury 
or wrong which he has suffered. 

A case in point would be that of a crime which represents 
an immediate and unpremeditated reaction against an ex- 
treme offense to the sentiment of self-respect. The universal 
prevalence of this sentiment renders the crime less shocking. 
This is why we are always ready to excuse the act of a man 
who makes use of a weapon at the very instant of experiencing 
some intolerable insult. 

The thing to be feared is that, in practice, these circum- 
stances of excuse will be the subject of abuse. In the Latin 
countries, especially, it is very difficult to get juries to convict 
for crimes of passion. The abolition of trial by jury should be 
the first step in the reform of criminal science.! 


1 In Italy, the criminal jury is retained chiefly out of consideration for the 
fifty or so lawyers included in the membership of the Chamber of Deputies 


384 CRIMINOLOGY [$2 


Again, there is the case where the motive is that of revenge 
for the murder of a relative. Committed in obedience to 
local prejudices or those of a social class, the crime may be 
termed “endemic.” It does not, however, essentially differ 
from the murder which is rendered excusable by the fact of 
provocation. We regard an injury as real when it is such ac- 
cording to the ideas current in the sphere in which we move: 
it is of little moment whether this sphere is the whole world 
or merely that microcosm wherein we dwell and which alone 
we know. Of such character is, beyond question, the blood- 
vengeance prescribed by the primitive customs which still 
survive in some regions of the South, such as Corsica, Sicily, 
and Calabria. 

Nevertheless, the fact of premeditation, whatever be the 
motive of the murder, always denotes a cruel nature. Not 
possessing such a nature, Hamlet passed long days of inde- 
cision, without being able to bring himself to an act 
against which his instincts rebelled. But the influence of the 
environment, the superstitious notion of a duty which calls 
for avenging the death of a father or the honor of a daughter, 
to a great extent limit the share in the production of the crime 
which must be ascribed to the individual character, that is 
to say, the moral anomaly of the slayer. It is the non-egoistic 
external motive which has predominated and been the deter- 
minant. Unless there are present other facts which would 
lead us to an opposite belief, we cannot be sure of the perma- 
nent insociability of the offender. 

In none of the cases spoken of in this section can the crim- 
inal be classed as a murderer. But there is reason to suppose 
that there exists in him a moral anomaly, in that his sentiment 
of pity falls below the measure demanded by the social life. 
Hence some means of elimination is required. It is necessary 
above all, that the individual be exiled from an environment 
where the prevailing prejudices almost justify his crime. 


whose specialty is that of trying cases in the Court of Assizes. Public opinion 
is decidedly adverse to this institution. 


§ 2] THE RATIONAL SYSTEM OF PUNISHMENT 385 


But this elimination ought to be neither absolute nor perma- 
nent nor determined in advance, — first, because it is impossi- 
ble to affirm that the degree of perversity is so high as to afford 
ground for fearing further crimes on the part of the same 
offender, and secondly, because of our inability to distinguish 
the part in the production of the crime which is chargeable 
to the moral anomaly of the individual from that which is 
chargeable to the influences of the environment. 

It would seem that the repressive treatment here appro- 
priate should take the form of internment (“relégation”) 
in some place — an island or colony, for example — where 
the criminal could be permitted freedom of movement and 
yet be kept under such supervision as would prevent his escape. 
The duration of the punishment should not be fixed in ad- 
vance, but should be made to depend upon a number of cir- 
cumstances, among which age and sex are the most important. 
For if we are dealing with a very youthful offender it may be 
supposed that the coming on of maturity will moderate the 
excessive sensibility responsible for his exaggerated tendency 
to resent offense, and take away from him the energy of which 
he has made such ill use. In the case of women, marriage and 
the birth of children may operate as a sufficient guaranty. 
With adult offenders, the approach of old age may have the 
like effect. Each of these conditions marks a change of life 
in which the dominating passions decline in strength or else 
disappear entirely to be replaced by others. Finally, when 
the interned offender during a series of years will have dis- 
played a uniform mildness of character in an unmistakable 
way, this fact ought to accelerate his return to society. For 
these reasons, it will be necessary to establish a period of 
observation. This will vary with the case, care however 
being taken not to make it too short. At its conclusion, the 
magistrate having before him a detailed report of all the facts 
tending to throw light upon the character of the offender, 
will decide whether the punishment should be terminated or 
continued. 


386 CRIMINOLOGY [$2 


(6) OrreNnDERS Guintty or Acts oF Ssrious Puysican 
orn Mora CRUELTY 


Offenders guilty of other crimes of the same nature — 
other violations, that is to say, of the sentiment of pity — 
should be subjected. to a penal treatment very different 
from that which is involved in the physical (“afflictive”’) 
and correctional punishments of the present system. This 
category comprises individuals who commit such offenses 
as the infliction of wounds with intent to maim or disfigure or 
to bring about a physical disability either permanent or tem- 
porary, mutilations, forcible abduction, rape, the infliction 
of physical cruelties upon defenseless persons, false accusa- 
tion (“calomnie”’), and kidnapping attended by protracted 
detention of the victim (“‘séquestration prolongée d’une per- 
sonne”’). It sometimes happens that the criminal instinct of 
such an offender is persistent. Whether this is the case can 
be ascertained by an examination for the stigmata of degen- 
eracy, mentioned in a previous chapter, in conjunction with 
an investigation of the facts relating to his habits and char- 
acter, which a long period of observation will permit to be 
studied in all their details. It may transpire that the offender 
is afflicted with hysteria. This is especially likely when his 
offense is that of false accusation or cruelties practised upon 
children. So, when the crime in question is that of wounding 
or rape, it may appear that the criminal is an epileptic or a 
victim of alcoholic brutalization. In such cases it will become 
necessary to confine the offender in an asylum for the criminal 
insane. 

Again, it may be that the author of an act of cruelty, 
without presenting any indications of phrenosis or neurosis, 
continues to display a brutal perversity, although he has not 
yet had occasion to commit murder. Here the only means 
capable of reconciling the necessities of social defense with the 
sentiment of humanity which in our day does not sanction 
the infliction of the death penalty upon the man who has not 


§ 2] THE RATIONAL SYSTEM OF PUNISHMENT 387 


taken life, is that of transportation. And since in instances 
of this kind the criminal’s nature is really that of a savage, 
the transportation should consist in the offender being taken 
to some remote region where civilization has not yet pene- 
trated and there left to shift for himself, removed from all 
possibility of doing harm to civilized men. This sort of trans- 
portation — the marooning of the offender — is in such cases 
the only rational form of punishment, as it is the simplest and 
least expensive to the public. So far as concerns the question 
of place, the islands of the Oceanic archipelago and the deserts 
of Africa will render possible this mode of repression for cen- 
turies to come. 

On the other hand, when a crime of the character under 
discussion appears as an isolated instance in the life of its 
author and does not prove an absolute insociability on his 
part, internment (“relégation”’) in a penal colony beyond 
seas will be the remedy most adapted to the case. The punish- 
ment will not be terminated until after an adequate period 
of observation, unless in the meantime the offender has made 
full payment to the victim or his family of the amount of 
compensation fixed by the magistrate and has obtained from 
the latter permission to return. 


(c) YourHrut OFFENDERS 


A period of observation must also be had in the case of 
youthful offenders guilty of wanton cruelties or of rape, when 
there is a possibility that mental and moral development will 
modify their instincts. The existence of this possibility should 
depend on no -hard and fast rule fixing legal minority, but 
should be left to the determination of the judge in the individ- 
ual instance. 

As we already have had occasion to point out, the instinct 
for bloodshed sometimes begins to reveal itself at a very early 
age in a series of acts characterized by violence and brutality. 
Although the agent’s lack of strength prevents them from being 


388 CRIMINOLOGY [$2 


of serious consequence, the situation is one which calls for 
attentive consideration on the part of the judge instead of, as 
under the present system, the hasty imposition of a so-called 
correctional punishment involving a few days or months of 
detention. These minor offenses are repeated with a frequency 
at times almost incredible until at length they culminate 
in some monstrous crime. Then only do we stop to consider 
the offender’s antecedents. The fact is that he has been all 
along an instinctive murderer and this the anthropologist 
would have told us long ago, had we submitted the subject 
to his examination. On the one hand, the kind and frequency 
of the acts, together with the offender’s psychology and an- 
thropologic characteristics, on the other, what may be called 
the queen of proofs — an hereditary history of vice, madness, 
or crime — would have enabled the observer to detect in the 
violent, passionate, and cruel child, that type of criminal which 
we have termed the murderer, and to suggest measures which, 
if adopted, would have resulted in the saving of one or more 
lives. 

For youthful offenders of the present description there 
should be a primary period of observation in an asylum for 
the criminal insane. This will probably disclose the existence 
of some psychopathic form. If not, and there is still hope that 
the arrival of puberty will work a transformation of the in- 
stincts, then the requisite measure is a secondary period of 
observation in an agricultural colony, lasting indefinitely, 
that is to say, until there is good reason to believe that the 
danger has disappeared. In the case of recidivism and when 
it becomes certain that the offender is characterized by absence 
of the moral sense and a persistent instinct of cruelty which 
sooner or later will manifest itself in murder, transportation 
of the kind mentioned in the last section, namely, marooning 
seems to be the only means whereby the State can prevent the 
taking of innocent lives, and at the same time spare the life 
of the offender who has not yet committed a murder. 


§ 2] THE RATIONAL SYSTEM OF PUNISHMENT 389 


(dq) Orrenpers DericreNT ONLY IN Morat TRAINING OR 
RESTRAINT 


Next we have a class of offenders who occupy a place at 
the very edge of natural criminality, or if it be preferred, 
midway between criminals and normal men. The offenses 
which they commit are the least serious violations of the 
sentiment of pity and can scarcely be attributed to a true 
cruelty, appearing rather to be the effect of what may be 
termed rudeness (“rudesse”’?) or lack of moral training or 
restraining influences. Such is the case of assault (“‘coups”’) 
occurring in the course of a fight where, the prisoner having 
refrained from striking his adversary after he was down, it 
is evident that there was no intent to kill; of causing death or 
physical injuries where the result is directly due to the negli- 
gence or carelessness of the offender, — to that disregard for 
the lives of others which always marks a low state of develop- 
ment of the altruistic sentiments; and of insults (“injures”’) 
and threats without serious import. In this category we may 
also include the case of seduction (“détournement d’une jeune 
fille sans violence”’). 

It is in such cases that we could with advantage substitute 
for the punishment of imprisonment that of compulsory 
reparation, rigidly enforced, of the material and moral damage 
occasioned by the offender. This would take the form of re- 
quiring him to pay two fines, one for the benefit of the State 
as compensation for the social disturbance as well as to defray 
the costs of the prosecution, the other for the benefit of the 
injured person. The amount of each should be made to de- 
pend upon the prisoner’s ability to pay, taking into considera- 
tion his private means if any, and if none, the possibility of 
his meeting the sum from the proceeds of his labor. With 
respect to solvent offenders measures of extreme severity 
will be necessary. The injured person should be awarded a 
lien (“hypothéque,” “judicial mortgage”) upon the defendant’s 
real property, and as to the residue of the latter’s assets, the 


390 CRIMINOLOGY [§ 2 


claim should be made a preferred and secured debt (“créance 
privilégiée’’). And in order to defeat any attempt on the part 
of the defendant fraudulently to convey his property, these 
ought to date not from the time of final judgment (“sentence 
définitive’’) but from that of the order committing the prisoner 
for trial (“ordonnance d’envoi en jugement”). Lastly, in 
case the injured person declines to avail himself of these 
advantages, the amount due to him ought to be paid into a 
Compensation Fund (“caisse des amendes”’) created for the 
purpose of making advance payments to needy. persons who 
have suffered injury through criminal offenses. 

As for insolvents, the thing to do would be to make them 
pay over for the benefit of the State on the one hand and on the 
other, for that of the injured person or (in case of the latter’s 
refusal to accept) the Compensation Fund above mentioned, all 
their earnings over and above what is required for the strictest 
necessities of life, namely, shelter and such food as is just suffi- 
cient to satisfy the demands of hunger. In the case of factory 
employees and the like, it should be made the duty of the 
employer to withhold this overplus in making payment of 
their wages. Finally, all offenders who refuse obedience to 
these measures, together with those who are in no position 
to comply, — vagabonds, wilful idlers, and persons without a 
fixed habitation, — should be enrolled in a corps of State 
workmen. Their wages in this service will nominally be not 
less than the wages paid free workmen. The State, however, 
will actually pay to them only such part thereof as is strictly 
necessary to enable them to live: the residue will from time 
to time be paid into the Compensation Fund, which will make 
the proper payments to the injured person. 

The adoption of such measures would have a three-fold 
effect. In the first place the resentment of the offended person 
would be more speedily allayed. Again, the public would be 
freed from the useless burden of maintaining the constantly 
renewed host of criminals who people the correctional prisons. 
And finally, the criminals themselves will be kept from becom- 


§ 3] THE RATIONAL SYSTEM OF PUNISHMENT 391 


ing still more demoralized and debased by the associations 
of the prison and brutalized by the enforced idleness of its 
regimen.! 


§ 3. The Punishment of Criminals Deficient in Probity. 


We now proceed to consider the penal treatment applicable 
to the third main class of criminals — those who lack the sen- 
timent of probity, either in whole or in part.? 


(a) InstincTIVE AND Hasituat OFFENDERS 


It has already been seen that as the counterpart of the mor- 
bid form called kleptomania, there may exist in persons not 
of unsound mind a propensity to theft resulting from heredity 
or atavism, and that such propensities are often revealed by 
external anthropologic signs, in particular by a distinctive 
physiognomy. The presence of these characteristics in an 
individual who is not in a condition of extreme destitution 
or wretchedness, coupled with the fact of a number of recidiva- 
tions on his part, makes it certain that he is a born and incor- 
rigible thief. The same thing is true of swindlers, who, 
likewise, are often found to exhibit distinctive characteristics. 

As I have said in a former place,’ elimination in its absolute 
form ought to be applied only in the case of murderers, be- 
cause, when the act of the offender has occasioned no grave 
and irreparable injury to the sentiment of pity, that sentiment 
itself stands in the way of taking his life. For the defense of 
society against such enemies, some less absolute means of 

1 These proposals have been worked out in my “Riparazione alle vittime 
dei delitti” (Turin, 1887); and in my papers read before the International 
Penitentiary Congress of Rome in 1885, the Congress of “L’Union Interna- 
tionale de Droit Pénal,’’ at Brussels in 1889, the International Penitentiary 
Congress, at Saint Petersburg in 1890, and also the Italian Juridical Congress, 
at Florence, in 1891. See in particular the proceedings of the last-mentioned 
Congress, p. 185 et seq. See also, in the Actes du premier Congrés d’Anthro- 
pologie criminelle (Rome, 1887), the notable paper presented by Fioretti; 
and, further, Appendix A of the present volume. 


2 See ante, Part II, c. 1, pp. 125-130. 
’ Ante, Part III, c. 1. 


392 CRIMINOLOGY [$3 


elimination is quite sufficient. First of all, we may set apart 
kleptomaniacs and pyromaniacs as well as epileptic thieves 
and incendiaries: these should be committed to an asylum 
for the criminal insane and there placed under proper treat- 
ment. The sane criminals with which we have to deal in the 
present connection are therefore thieves, incendiaries, swin- 
dlers, and forgers, who are suffering from no mental disorder 
but are possessed of a criminal instinct (or according to Bene- 
dikt, a moral neurasthenia), together with habitual offenders 
of this species, whether their lack of probity is congenital or, 
commencing by external accident (bad training, bad examples, 
and bad company), has subsequently become instinctive and 
incorrigible. For these the proper measure would be that of 
transportation to some distant and sparsely peopled territory, 
some colony in the first stages of settlement, where assiduous 
toil is absolutely necessary to the preservation of existence. 
The rigid application of the maxim “Qui non laborat nec 
manducet,” together with the offender’s knowledge that all 
the rest of his days must be passed in this exile would perhaps 
induce him to make some efforts; the probability is thathe 
would try to render his existence less precarious and burden- 
some. But if the neurasthenia is unconquerable and the 
criminal finds the means of exercising his maleficent activity 
in the place of his internment, then a further elimination will 
become necessary. In that event resort should be had to the 
punishment of marooning mentioned in § 2 (b) of the present 
chapter. 

It is contended, however, that transportation has seen its 
day. In view, we are told, of the rapidity with which Oceanica 
is being colonized, and of the constant invasion by civilization 
of all the other waste places of the earth, there will soon be 
no more available territory. 

Yet France possesses New Caledonia, the colonization of 
which has scarcely commenced, and sends thither its habitual 
offenders in spite of the opposition of the Australian govern- 
ment — an opposition no doubt actuated by the fear of future 


§ 3] THE RATIONAL SYSTEM OF PUNISHMENT 393 


commercial competition much more than by that of Australia 
becoming an asylum for escaped convicts. Russia has, in Sibe- 
ria, an immense area of very thinly populated territory which 
it uses for the exile of criminals. The government of British 
India continues to transport convicts to the Andaman Islands. 
In the prison congress held at Calcutta in 1877, the subject 
of debate was not the abolition of transportation, but merely 
its restriction to the case of habitual offenders — a measure 
with which our plan is in entire harmony. 

Some day, perhaps, space will be lacking. So, for that 
matter, will the world’s coal supply some day be exhausted: 
it has even been calculated just how many centuries it will 
take to bring this about. But, because of a vague probability, 
are we to refrain from making use of the world as we find it 
today? After the islands of Polynesia and Malaysia, recourse 
could be had to the Sahara and finally, to the innumerable 
coral islands, for the most part entirely uninhabited, with 
which the Pacific Ocean is strewn. . . . We may rest assured 
that for many centuries to come, there will be no default of 
waste lands to receive the noxious elements of the civilized 
nations. 

There is, of course, an economic problem to be solved, that 
of the expense of transportation and supervision, as well as 
the cost of defending a population situated at such a distance 
from the mother country.!_ But it must be considered that the 
original outlay, however great, which such a plan may involve, 
will mean a saving in the long run. By relieving the home 
penal establishments of the care of all habitual criminals, — 
whose offenses, be it noted, constitute almost one-half of the 
total number of crimes, — this measure will effect a reduction, 
constantly growing more appreciable, in the amount of the 
prison appropriations. For the interned offender will be under 
the necessity of earning his own living by agricultural labor, 


1 On the question of transportation see the very interesting work of 
Leveillé, “La Guyane et la question pénitentiaire coloniale” (Paris, 1886). 
See also Bruck, ““Die Gegner der Deportation” (Breslau, 1901); Fani, “La 
deportazione”’ (Perugia, 1896). 


394 CRIMINOLOGY [$3 


opportunity for which will not lack, whereas in the case of a 
prison it is always a matter of exceeding difficulty to find 
useful employment for the inmates.! 


(6) Non-HapituaL OFFENDERS 


The sub-class with which we have just been dealing, it 
will be observed, is composed of offenders whose improbity 
either is congenital or else has become instinctive through 
habit and who, at the same time, by reason of the gravity or 
number of their crimes are a constant menace to society. We 
have now to do with a second sub-class consisting of individ- 
uals whose depravity is still incomplete, and who have not 
yet become habitual offenders or extremely dangerous to 
society. 

This is a particularly numerous group. The typical case 
is that of the individual with no very deep-rooted sentiment 
of probity who offends because of an evil example which he 
has followed from a spirit of imitation. A first fault often 
leads to another. For a good reputation is a necessity of 
existence even in the humblest social conditions. The domes- 
tic or workman detected in a theft will have difficulty in finding 
employment. A new career, that of malefactor, then opens 
to him, and since he is no longer held back by the most power- 
ful of the restraining influences which had hitherto been 
operative, — the fear of being proclaimed dishonest, — he 
will lose no time in making this career his own. The only 
remedy possible in the case of such offenders is to effect a 
change in their territorial environment, in their habits, in the 
nature of their work, — in short, to make them begin a new 
life. If the punishment inflicted by the State is to improve 
the situation instead of rendering matters worse, as it does 


1 In Italy, for example, three-sevenths of the inmates of the penitentiaries 
are in a state of complete idleness, while the work of the rest counts for little 
in point of productiveness (Beltrani-Scalia, “‘La riforma penitenziaria in 
Italia,” p. 307). In France, on 31 December, 1884, out of 25,231 prison in- 
mates, 10,087 were unemployed (D’Haussonville, “Le combat contre le 

vice,” — Revue des Deux Mondes, 1 January, 1888). 


§ 3] THE RATIONAL SYSTEM OF PUNISHMENT 395 


today, it must not lose sight of the causes which have deter- 
mined the crime. It therefore becomes necessary for us to 
distinguish the different cases of this character according to 
these causes. 

Youthful Offenders Influenced by Bad Examples. — Take 
first the case of adolescents who have been influenced to steal 
by bad examples encountered in their environment or, for that 
matter, in their own families. The necessity of immediately 
removing the offender from his deleterious surroundings is here 
evident, for therein lies the only hope of preventing him from 
becoming an habitual thief. This necessity has long since been 
recognized and by nearly every writer who has treated the 
subject. The only difficulty has been in settling upon the 
means, — in determining whether it shall consist of houses of 
correction, industrial asylums, or agricultural colonies. But, 
according to D’Olivecrona, there is no doubt that the agricul- 
tural colony is much to be preferred.! 

France, since 1850, has had agricultural colonies for young 
criminals acquitted because of inability to understand the 
nature of their acts (“défaut de discernment”) and minors 
sentenced to more than six months and less than two years of 
imprisonment. Of these colonies some were established by 
the Government; others again were founded by individuals 
but are now under State control. The latter showed only 
6.42% of recidivists, while the percentage in the Government 
colonies was somewhat higher — 11.29%. The term of deten- 
tion varies from 3 to 6 years. Agricultural labor furnishes the 
principal means of employment, but other industries such as 
blacksmithing and carpentry, find a place. “Never has public 
money been more usefully expended,” says the writer last 
cited, “since by this means the State in 93 out of every 100 
cases re-adapts to society aclass of individuals who for the most 
part would otherwise have become inmates of the penitenti- 
aries for the rest of their lives at the public expense.” ? When 


1 D’Olivecrona, “Des causes de la récidive,” etc. p. 171 (Stockholm, 1873). 
2 Ibid., p. 168. 


396 CRIMINOLOGY [$3 


the term of detention expires, the director of the colony finds 
employment for his charge with some farmer, or else sees that 
he enters the army or navy. A complete removal of the in- 
dividual from his former environment is thus brought about. 
Similar colonies exist in England, Belgium, Holland, Germany, 
Switzerland, and the United States. 

Such institutions, it need scarcely be said, can be established 
with safety in a civilized country. The class of offenders here 
in question is such that their supervision would be an easy 
matter, and even if some escapes should occur, the danger to 
the neighboring residents would not be very serious. The case 
offers no difficulties at all to be compared with those attending 
the establishment of agricultural colonies composed of adults 
sentenced to penal servitude, as has been attempted in Italy 
—an undertaking which, in my judgment, is a very grave 
mistake. 

_ Adult Novices. — Turning now to individuals who have 
emerged from adolescence, we find a large group of novice 
thieves who have been compelled to crime as a result of neg- 
lect, idleness, the lack of a trade, or a tendency to vagabond- 
age. Whatever be the nature of the theft, unless it plainly 
appears that we have to do with an irreducible congenital 
instinct, the case is always one for experiment. This will 
take the form of assigning the offender to a corps of workmen 
employed by the State, where his wages, nominally equal to 
the ordinary standard, would be retained for the payment of a 
fine to the State and compensation to the injured party. In 
this service he would be entitled to food only when he has 
properly performed his daily stint, and would thus be con- 
fronted with the alternative of working orstarving. Norshould 
the satisfaction of the amount due be followed by his abso- 
lute release. Instead, he ought to be required to deposit a 
small sum as security for his good behavior and to find employ- 
ment in some manufactory or other industrial establishment. 
In case of a fresh crime, the sum deposited would be immedi- 
ately forfeited; otherwise, it would be restored to him, but 


§ 3] THE RATIONAL SYSTEM OF PUNISHMENT 397 


not until after the lapse of a certain number of years of good 
conduct on his part. Where the State has colonial territory 
in which it is desirous of encouraging settlement, the offender 
might be exempted from giving security upon condition 
that he immediately emigrate to one of these colonies. In 
the case of recidivism, internment for life in an oversea 
penal colony (“relégation perpétuelle”’) is the means which 
must be directly resorted to. Since proof is here present of a 
persistent individual cause, namely, aversion to work, any 
other measure would be of no avail. 

The same treatment is applicable to the case of novice 
swindlers and forgers. 

Cases of Aberration or Cupidity. — It happens with consider- 
able frequency that the offender is neither an idler nor a 
vagabond. He follows a trade, a profession, he has an ade- 
quate income, perhaps even moderate wealth. Yet, by some 
strange aberration, he commits a theft; from pure cupidity, 
he misappropriates money which has been entrusted to his 
care: all at once he turns swindler, forger, or criminal bank- 
rupt. The circumstance furnishes proof of his improbity, 
but there exists no constant motive to impel him to further, 
offenses. It may well be, therefore, that he will not repeat his 
fault, if by the complete disappointing of his cupidity, he is 
made to realize that in his own interest, honesty is the better 
policy. To serve this purpose no course of action could be 
better adapted than that of compelling him, by the means 
indicated in § 2 (d) of the present chapter, to pay a fine to the 
State and compensation to the injured party. Such a measure 
would result in still other advantages to society. Suppose that 
a dishonest cashier or fraudulent bankrupt knows for a cer- 
tainty that once discovered, he will not be permitted to enjoy 
the smallest fraction of his ill-gotten gains, but will be com- 
pelled to restore them to the last penny, or else work through- 
out an indefinite period for the benefit of those whom he has 
robbed. Is it not likely that the upshot will be the speedy 

reappearance of the stolen funds, supposed to have been 


398 CRIMINOLOGY [$3 


squandered but in fact confided to friendly hands? And is not 
the plan here proposed much more useful from every stand- 
point than the sentencing of the offender to a fixed term of 
imprisonment — a proceeding which is of profit to no one, and 
only adds the cost of the prisoner’s maintenance to the 
damage occasioned by his crime? 

If the sum has really been squandered, then it is for the 
offender to devote his constant labor toward making it good. 
In case he refuses to seek work on his own account, he will 
be made to enter one of the companies of State workmen, 
already mentioned, where work will be his only means of 
escaping starvation. If, after the lapse of a number of years, 
he has been unable to earn the whole of the misappropriated 
sum, his age and good intentions could be taken into consider- 
ation. The period of this coercion might even be fixed at 
10 or 15 years, subject, however, to indefinite extension, 
whenever there appears any tendency to shirk. 

When the offender has fully compensated the injured person 
and paid the fine due to the State, he will be released. In this 
case as well as in the case just mentioned where he may be 
released at the end of a term of years on account of his in- 
ability to meet the whole of the sum required, he will undergo 
no further punishment except that of being deprived of his 
political rights and prohibited from holding any public office 
or, if the offense be criminal bankruptcy, from engaging in 
any commercial pursuit. 

Should, however, the offender commit a new crime of the 
same description, then he ought to be subjected to the form 
of treatment which is above proposed for idlers and vagabonds. 
A second recidivation on his part, as on theirs, would be 
properly followed by internment for life in an oversea penal 
colony (‘‘relégation perpétuelle’’). For the fact of recidivism 
is sufficient evidence that the case is not one of an individual 
with whom crime is an isolated instance, but of an individual 
whose improbity of character is accompanied by a constant 
motive for dishonest conduct. 


§ 5] THE RATIONAL SYSTEM OF PUNISHMENT 399 


§ 4. The Punishment of Lascivious Criminals 


It now becomes necessary to speak of those offenders against 
chastity who cannot be ranged among the violent criminals. 
Apart from the latter and requiring a different order of treat- 
ment is the class of lascivious criminals (“satyres et cy- 
niques”).!_ The members of this class are for the most part 
degenerates, but not always psychopaths. When a true form 
of psychopathy does not clearly appear, the appropriate 
regimen for such an offender is internment in an oversea penal 
colony (relégation’’) for an indefinite period. Release should 
be made dependent upon the changes brought about by new 
habits of life and supervening circumstances of age and family, 
as explained in § 2 (a) of the present chapter. But if the 
offender is a psychopath, — it matters not whether the case 
is one of sadism, senile lubricity, or any other form, — the 
necessary measure will be that of confining him in an asylum 
set apart for the purpose, like those designed for epileptics and 
persons suffering from chronic alcoholism.? 


§ 5. Cases for Retention of Existing Punishments 


It will be noticed that temporary imprisonment for a term 
fixed in advance, the typical punishment of the modern crim- 
inal law, has no place in the system just outlined. The rea- 
sons which have led us to oppose this form of punishment have 
been sufficiently explained in the course of our discussion, 
and need not be repeated. We have tried to direct all punish- 
ment to the end which today it leaves out of view, namely, 
that of social utility, and this we have sought to do by a 
strictly logical following of the principle of rational reaction 
against crime. Sometimes, as has been seen, the measure 
necessary is elimination — realized, absolutely by the death 
penalty, relatively by confinement in an asylum for the crim- 


1 See ante, Part Il, c. 1, § 6. 
2 See Viveiros de Castro, “‘ Attentados ao pubor” (Rio de Janeiro, 1895). 


400 CRIMINOLOGY ($5. 


inal insane, by marooning (“déportation avec abandon’’), 
by internment in an oversea penal colony for life or for an 
indefinite period, the duration of which will depend upon a 
number of circumstances. In other cases, as has been further 
shown, there is required nothing more than reparation, the 
payment of compensation to the injured person together with 
a fine to the State, to effectuate which, if need be, the offender 
can be subjected to enforced labor in some species of public 
works, — his wages being withheld by the State, —for a 
period which may be indefinitely prolonged. 

Exceptional Cases, e. g., Counterfeiters. — For a few crimes, 
physical restriction of the criminal’s freedom of movement 
must still be resorted to, as the only means of preventing the 
repetition of his act. Such, for example, would be the offense 
of counterfeiting, either of paper money or of coin. Exile 
to a penal colony (“relégation”) would not be calculated 
to stamp out this criminal industry. Nor would enforced 
reparation be likely to prove any more effective. Criminals 
of this species are for the most part in association, and have 
at their command ample funds to pay the offender’s indem- 
nity and enable him to make a fresh start. For these reasons, 
it is necessary that counterfeiters be imprisoned and kept 
isolated until the expiry of a period sufficient to justify the 
belief that their confederates have disappeared. But cases of 
this description, where a physical obstacle to the criminal’s 
movements is absolutely exacted by the social defense, repre- 
sent but a small fraction of the whole number, and peniten- 
tiary imprisonment (“réclusion”’) should be here employed by 
way of exception. 

Cases not involving Natural Criminality. — Lastly, imprison- 
ment or detention for a term fixed in advance would be re- 
served for all those offenses which we have excluded from our 
categories of criminality '— cases involving a special immo- 
rality not incompatible with the altruistic sentiments which 
at the present day form the basis of morality. The immo- 

1 See ante, Part I, c. 1, § 6. 


§ 5] THE RATIONAL SYSTEM OF PUNISHMENT 401 


rality of these acts consists chiefly in a defiance of authority 
or a disobedience to the law. If this political element predom- 
inates, then it becomes necessary that instead of being deter- 
mined by the criterion of adaptation to the social life, the pun- 
ishment should assume the form of a chastisement capable of 
enforcing respect for the law. It is a question not of true 
criminals but of persons who set themselves against the law 
(“révoltés”’). Falling without the scope of our study, these 
likewise fall without the scope of our conclusions. We thus 
stop at a point where the policy of the State takes the place 
of the natural laws of the social organism. 


7 


— 





PART IV 


OUTLINE OF PRINCIPLES 


SUGGESTED AS A BASIS FOR AN INTERNATIONAL 
PENAL CODE 


Sa 
Ban a te sited 


iF 


Ray 


'- 


nt) 





OUTLINE OF PRINCIPLES 


SUGGESTED AS A BASIS FOR AN INTERNATIONAL 
PENAL CODE 


Division I: GENERAL PRINCIPLES 


§ 1. Purpose of the Code.—It is the purpose of the Code to 
provide a system, which in codperation with the other social 
forces, will serve to bring about the disappearance, or at least 
the progressive diminution, of the criminal phenomenon. 

§ 2. Its Scope. — The Code is to deal solely with natural 
crime, 7. €., such acts as offend the sentiment of humanity or 
violate the rules of conduct exacted by the common or aver- 
age probity of present-day civilized peoples. 

§ 3. Its Internationality. — (a) Thus limited, the Code is 
to be made international and will contain provision for the 
mutual delivering up of fugitives from justice between the 
several States included in the International Union thus to be 
formed. The fact that the offender is not a national of the 
demanding State will not be a bar to his extradition. 

(b) The police of the adopting States as well as the judges 
of instruction and all other judicial officers will be in direct 
communication without the necessity of diplomatic inter- 
vention. 

(c) In order that the punishment, hereafter mentioned, 
of internment in an oversea penal colony (“relégation”’) 
may be at the command of each of the several States, it will 
be the duty of States possessing such colonies to receive and 
take charge of offenders sentenced to this form of punishment 
in States not themselves provided with the means of carrying 
it into effect, always subject to the payment of proper charges. 


406 CRIMINOLOGY [Drv. I 


§ 4, Excluded Punishable Acts. — Such punishable acts as 
do not come within the purview of the Code will be 
the subject of a Code of Disobediences (‘‘Révoltes”’) 
and a Code of Police Offenses (‘Contraventions’’) to be 
formulated by each State according to its individual neces- 
sities. 

§ 5. Punishment: its Character and Purpose. — (a) Pun- 
ishment ought to represent a means calculated to effect 
the cessation of the criminal’s harmfulness to society. It 
should therefore interpose to the criminal’s activity a barrier 
of sufficient strength to nullify that activity. This may be 
(1) material, consisting of the application of external force, or 
(2) of such a nature as to convince the criminal that from his 
own standpoint honest and peaceful activity will be more 
profitable than the activity of crime. 

(b) Punishment, moreover, ought not of necessity to occa- 
sion physical suffering to the offender. In all cases, however, 
it should reduce him to a condition of inferiority which he will 
feel as something undesirable. 

(ec) The rule which permits the granting of extenuating 
circumstances at the discretion of the trier will have no place 
in the criminal law, nor will the institutions of pardon and 
amnesty. 

(d) The punishment of imprisonment for a term fixed in 
advance will be abolished. Cellular imprisonment may be 
retained for temporary use in case of need. 

(e) The convicted offender will be required to pay the 
expense of his maintenance, and by his enforced labor, if he 
is without pecuniary means. 

§6. Classes of Criminals. — Every criminal (7. e., every 
author of a natural crime) belongs to some one of the follow- 
ing classes: 

(1) Murderers. 

(2) Violent Criminals. 

(3) Criminals Deficient in Probity. 

(4) Lascivious Criminals (“Satyres et cyniques’’). 


Drv. I] GENERAL PRINCIPLES 407 


§7. Murderers and Violent Criminals. — (a) Criminals of 
the first or second class may be guilty of: Murder, culpable 
homicide, arson, dynamiting, mayhem (“mutilations”), 
the wanton infliction of other physical cruelties (“sévices”), 
and such maltreatment of the old, of children, and of other 
dependent persons as is injurious to their health or (in the 
case of children) arrestive of their development. 

(6) Before a person committing a crime of this description 
can be classed as a murderer, there must in general appear on 
his part: (1) an intent to kill or to inflict physical torture, 
and (2) an acting to an egoistic end, without any provocation 
on the part of the victim which can be regarded as intolerable 
or unjust. 

(c) In certain cases, however, the cruelty of the act is in 
itself sufficient evidence that the agent belongs to the class of 
murderers. 

(d) In the absence of the elements specified in sub-sections 
b and c of the present section, attacks upon life or physical 
integrity, interferences with the liberty of the person (includ- 
ing abduction (“enlévement”’), as also cases of insults and 
threats, are to be attributed to the second class, 7. e., Violent 
Criminals. 

§ 8. Criminals Deficient in Probity. — (a) The class here- 
tofore designated as Criminals Deficient in Probity comprises 
thieves and falsifiers (“‘faussaires’’).! 

(6) Under the denomination of thieves are included 
receivers of stolen goods, persons obtaining money by false 
pretenses, criminal bankrupts, and persons guilty of counter- 
feiting manufactured products. Thieves properly so called, 
receivers of stolen goods, and persons obtaining money by 
false pretenses are either (1) novices, or (2) habitual offenders. 

(c) Falsifiers are those who directly or indirectly injure 
the civil rights, property, or reputation of others by means of 


1 [“Faussaire” ordinarily is translatable as “forger” or “‘counterfeiter,” 
but (as appears in sub-section ¢) is employed here to denote the authors of a 
wide range of “crimina falsi.” Either of these renditions would consequently 
be too narrow. — TRANSL] 


408 CRIMINOLOGY [Drv. I 


the forgery of official documents or private writings, the sub- 
stitution of children, and the suppression of civil status,! 
or by means of false declarations as occurs in the crimes of 
perjury and false accusation (“calomnie’’). 

§ 9. Lascivious Criminals.— To the class of Lascivious 
Criminals (“Satyres et cyniques”’) areto be attributed offenses 
against chastity dictated by an inordinate degree of lascivious- 
ness (as in certain cases of indecent liberties with minors), 
and also acts proceeding from the form of perversion known 
as sadism. 

§ 10. Cases for Special Treatment. — (a) Notwithstanding 
that moral apathy, the absence or weakness of moral sense, 
the influence of passion, may annul moral responsibility, they 
do not prevent the existence of crime. Cases of this character 
may however call for differential treatment. 

(6) Differential treatment would likewise be proper for the 
following classes: (1) Women. (2) Persons advanced in 
years. (3) Children and adolescents. (4) Hypnotized per- 
sons. (5) Drunkards. (6) Criminal monomaniacs. 

§ 11. Criterion of Punishment. — All idea of proportioning 
the punishment to the objective gravity of the offense or 
to the moral responsibility of the offender must be discarded. 
The punishment must be spa! to the criminal aptitude 
of the wrong-doer. 

§ 12. Aim of Punishment. — The a aim should be not to pun- 
ish the criminal fact but to strike the criminality of the agent 
as revealed by the fact. 

§ 13. Criminal Attempt. — (a) It follows that an attempt 
to commit crime, when it reveals the criminal aptitude of the 
agent, must be considered as the crime itself. The employ- 
ment of insufficient means is not always proof of ineptitude, 
especially in the case of juvenile offenders. 

(b) Acts simply of preparation may be regarded as consti- 
tuting a true attempt, when (1) the criminal resolution is 
beyond question, and (2) there is no reason to doubt that the 

1 [For “suppression of civil status” see ante, p. 41, note 3. — TRanst.] 


Drv. I] GENERAL PRINCIPLES 409 


offender would have persisted in carrying out the resolution 
had he not been prevented by an unforeseen circumstance. 
In general the intent is unmistakable if the agent is an habit- 
ual offender and the act of preparation is a necessary one 
in the particular class of crimes which he makes his specialty. 

(c) Acts simply of preparation and attempts which have not 
proceeded beyond a remote stage will not be subject to pun- 
ishment unless the elements above specified concur to remove 
all doubt as to the true direction of the act and the criminal 
aptitude of the agent. 

§ 14. Criminal Participation.— (a) The personal circum- 
stances are not to be attributed to the accomplice. The mate- 
rial circumstances are to be so attributed only in so far as the 
accomplice is chargeable with knowledge thereof.! Different 
forms of penal treatment may be applied to the principal 
agent and the accomplice if they belong to different classes 
or sub-classes of criminals and differ in their criminal 
aptitude. 

(6) One who has employed another to commit a crime will, 
in the event of its failure, be deemed guilty of an attempt, 
even where the person employed has voluntarily desisted 
before coming to the final act, provided that the mandator 
had no reason to suppose that the mandatory would not have 
carried out his undertaking. 

§ 15. Plurality of Offenses. — A plurality of offenses is suffi- 
cient ground for classing the criminal as an habitual offender, 
although he has never undergone previous conviction. 

§ 16. Recidivism. — (a) Recidivism involving crime of a 
different species from the prior offense or offenses may be 
regarded as more serious than special recidivism. 

(b) The offender is not to be considered as any the less a 
recidivist, because of the lapse of a certain number of years 
since his last conviction. 

(c) The fact of recidivism, either general or special, fre- 


+ [For “personal and material circumstances” see ante, p. 321, note 2.— 
TRANSL] 


410 CRIMINOLOGY [Drv. II 


quently denotes the incorrigible offender hereafter mentioned 
(§§ 20, 21). 

(d) This fact is not however a mark of incorrigibility in the 
case of adolescents, persons just emerged from adolescence, 
and persons of extreme ignorance, when there is ground for 
attributing the offender’s criminal habits to the surroundings 
in which he was born and reared and to the total absence of 
education. 


Division II: System or PuNISHMENT 


§ 17. Requisite Effect of Punishment. — All punishment 
should be such as to produce at least one of these two effects: 
(1) elimination of the offender who has been found incapable 
of adaptation to the social coexistence, and (2) reparation by 
the offender of the harm which he has occasioned. 

§ 18. Absolute Elimination. — For murderers, the elimina- 
tion will be absolute. The only punishment capable of realiz- 
ing absolute elimination is that of death. 

§ 19. Relative Elimination.— For criminals of the other 
classes elimination will be realized by one of the following 
methods: 

(1) Marooning (“transportation avec abandon”’). 

(2) Internment (“relégation”) in an oversea penal colony 
for life. 

(3) Internment in an oversea penal colony for an indeter- 
minate period. 

(4) Confinement for an indeterminate period in an asylum 
(insane persons and victims of chronic alcoholism). 

(5) Compulsory service in a company of workers to beem- 
ployed in some species of public works. For such service 
there is to be a wage (nominally equal to the ordinary standard) 
which however will be retained by the officials in charge to 
defray the cost of the offender’s maintenance and to indem- 
nify the injured person. 

§ 20. Marooning. — (a) The punishment of marooning 


Drv. II] SYSTEM OF PUNISHMENT 411 


(“transportation avec abandon’’) will be applicable only to 
such violent criminals, instinctively disposed to bloodshed, 
and such habitual thieves as have been found incapable of 
assimilation in a civilized environment. i J 

(b) Such incapacity, however, will not be declared until 
after the offender, during subjection for a certain period to one 
of the forms of internment before indicated, has given proof 
of an irreducible and dangerous criminal character. 

(c) The punishment will be carried out in some remote 
region entirely cut off from communication with the civilized 
world. 

§ 21. Internment for Life.— (a) The punishment of in- 
ternment for life (“relégation perpétuelle”) in an oversea 
penal colony will be applicable to habitual or professional 
thieves. But in the case of children and youths reared in a 
criminal environment, this punishment will not be imposed 
until after unsuccessful resort has been had to internment for 
an indeterminate period. 

§ 22. Internment for an Indeterminate Period. — (a) Intern- 
ment for an indeterminate period (in addition to its employ- 
ment for the youthful offenders just mentioned) will be appli- 
cable to thieves who are recidivists but not professionals, 
to falsifiers,! to dangerous individuals belonging to the class 
of violent criminals, and to lascivious criminals (“satyres et 
cyniques’’). 

(6) In all cases of indeterminate punishment, there will 
be established a period of observation varying from five to 
ten years, according to the agent’s degree of perversity. Upon 
the lapse of this period it will be in order to examine the facts 
capable of throwing light upon the question of the offender’s 
adaptation to the social life. Marriage and the birth of 
children (especially for female offenders), the attainment of 
maturity or old age, are all to be taken into consideration as 
tending radically to modify the character. The desire 
to make compensation to the victim or his family, manifested 

1 [See ante, p. 407, note 1. — Trans] 


412 CRIMINOLOGY [Drv. IT 


not by words but by acts of unmistakable import will be 
regarded as the only real sign of such reformation on the 
part of the offender as is capable of bringing about the termi- 
nation of his punishment. 

(c) Thieves, receivers of stolen goods, and persons obtaining 
money by false pretenses, will be interned, preferably in a 
newly established colony where the population is widely scat- 
tered. They will be released only after they have acquired 
the habit of work and learned some useful trade. In case 
such an offender resorts to criminal activity in the place of 
his internment, he will be subjected to internment for life. 

§ 23. Compulsory Labor. — (a) Non-recidivist offenders 
whose crimes appear to be chiefly due to idleness, apathy, 
or vagabondage, will be made to undergo compulsory service 
in one of the companies of workers before mentioned (§ 19, (5)). 
In this service the prisoner will not be supplied with food ex- 
cept upon the performance of his daily stint. There will be 
various sorts of work suited to the age, sex, health, and educa- 
tion of the individual. Release will come only when the of- 
fender has fulfilled his obligation to indemnify the injured 
person and has, in addition, paid a fine to the State. If the 
sum required to effect complete indemnity is beyond his means 
and cannot be entirely met by the proceeds of his labor, 
the indemnity will be partial and in a measure to be regulated 
by the circumstances of the case. 

(b) Upon his release, the officials in charge will lend the 
offender assistance in finding free labor either in the home 
country or in the colonies. They will, however, require him 
to deposit a sum of money, which will be subject to forfeiture 
in the event of a fresh offense on his part. 

§ 24. Enforced Reparation.— (a) Except as before pro- 
vided, violent criminals and non-recidivist thieves who are 
neither dangerous nor without means of support, will not be 
punished otherwise than by being compelled to make compen- 
sation to the injured person and to the State. This will 
take the form of two fines, the respective amounts of which 


Drv. IT] SYSTEM OF PUNISHMENT 413 


will be fixed by the judge, in taking into consideration the 
offender’s pecuniary means, if he has such, or if not, the 
possibility of his meeting the sum by the proceeds of his 
labor. 

(6) If, however, the convicted person does not fulfil this 
two-fold obligation within a stated period, he will be made to 
undergo compulsory service in one of the companies of workers 
described in § 23, and to conform to the rules governing the 
offenders therein enrolled. 

(c) The offender who, in consequence of making compensa- 
tion to the injured person and the State, as before indicated, 
has been exempted from punishment or released, may, never- 
theless, be deprived of his political rights as well as his right 
to exercise a given trade or profession. 

§ 25. Measure of Reparation. — (a) The amount of the fine 
due to the State will be proportioned to the social and economic 
condition of the offender. 

(6) In fixing the amount of compensation due to the injured 
person when the question is not one of pecuniary damage, 
but of moral suffering (“‘douleur morale’’), there will be taken 
into account the social and economic condition both of the 
offender and the person injured. 

§ 26. Compensation Fund.— The State will establish a 
Compensation Fund for the purpose of indemnifying: (1) 
persons injured by criminal acts who have been unable to 
obtain compensation from the wrong-doer, and (2) persons 
who, after suffering imprisonment pending prosecution, have 
been acquitted as the result of a trial on the merits. 

§ 27. Substitute for Prescription. — (a) There will be no 
prescription either of the action or of the judgment. But 
when the offender’s conduct and manner of life, for an ade- 
quate period from the date of his offense, have been such as 
to show that he has undergone a true moral transformation 
and thereby become a sociable and useful being, the judicial 
authority, either before or after a judgment of conviction, 
may order that further proceedings shall cease. 


414 CRIMINOLOGY [Drv. III 


(b) Such action however will not release the offender from 
his obligation to indemnify the person injured. 

§ 28. Hypnotized Persons and Drunkards. — A person who 
commits a crime in a state of hypnotic suggestion or drunken- 
ness will be subjected to the treatment indicated in § 19, (4). 
If, however, other circumstances exist which prove his crim- 
inal character and the fact of his prior decision, the case is 
one for the ordinary punishments. 


Drvision III: ProcepurEe 


§ 29. The Judicial Investigation. — The magistrate who is 
to conduct the judicial investigation (“‘instruction”’) will be 
independent of every governmental agency other than the 
Public Ministry; and, except as hereafter provided, will act 
only upon the request of the latter. The investigation will 
be secret unless, in the opinion of the judge of instruction, pub- 
licity will be an aid in arriving at the truth. In that event he 
may permit the parties and witnesses for and against to testify 
in each other’s presence, but without the attendance of counsel. 

§ 30. Complaint by Person Injured.— When the Public 
Ministry does not see fit to prosecute, the person injured may 
address the judge of instruction directly. 

§ 31. Commitment for Trial. — Except where taken in the 
criminal act, the accused will be committed for trial only by 
interlocutory judgment (“ordonnance”’) of the judge of in- 
struction. 

§ 32. Initiation of the Criminal Action. — Crimes of the 
character dealt with by the Code will always be the subject 
of official initiative (“action publique”). Complaint by the 
injured person is never to be treated as an essential step in 
the procedure. 

§ 33. Imprisonment Pending Prosecution.— (a) Imprison- 
ment pending the result of the proceedings is a necessary 
measure and will be ordered by the judge of instruction: 

1 [See ante, p. 355, note 1. — TRANSsL.] 


Drv. III] PROCEDURE 415 


(1) When the punishment likely to be imposed is sufficiently 
heavy to make it an object to the person under arrest to take 
to flight or go into hiding; 

(2) When it is probable that he will effect the disappear- 
ance of physical (“‘matérielles”’) evidences of the crime; 

(3) When there is reason to believe that he will attempt 
to suborn witnesses or otherwise hinder or thwart the 
prosecution; or 

(4) In any case where he stands in danger of violence at 
the hands of the injured person or his relatives. 

(6) Provisional liberty will not be granted except when, 
in the opinion of the judge, each and all of the foregoing 
circumstances are absent. 

§ 34. The Court. — (a) The criminal jury will be abolished. 

(6) The function of criminal judge will be exercised by 
magistrates forming a class wholly distinct from the judges of 
the civil courts. To this office appointments will only be made 
from among persons possessing a thorough knowledge of the 
moral statistics of the country as well as of criminal psychol- 
ogy and penitentiary systems. 

§ 35. Trial and Sentence. — (a) The Public Ministry will 
not act as accuser.! Its duty will be that of advising with the 
judicial officers as to the results of the investigation and trial. 

(b) The prisoner may call for expert testimony (“‘exper- 
tise’’) or for the examination of new witnesses (“assignation de 
nouveaux témoins’’), on his behalf. Except in case of a con- 
fession, the truth of which there is no reason to doubt, he will 
be allowed the services of counsel. 

(c) Once the facts have been established, the public trial 
will conclude. 

(d) The tribunal will then appraise the moral nature of the 
offender so as to assign him to his proper criminal class. It 
may suspend judgment for the purpose of investigating his 


1 [I. e., the procedure is not to be adversative. The trial will represent not 
a contest between two sides but an inquiry conducted by the court. See 
ante, p. 355 et seq. — TRANSL.] 


416 CRIMINOLOGY [Drv. III 


antecedents, his family circumstances, and his condition of 
life. It may subject him to examination by a physician, or 
assign to one of its members the duty of studying his mental 
and moral nature and defining his criminal aptitude or degree 
of perversity. Lastly, it will determine whether the means 
to be applied is one of elimination or merely that of enforced 
reparation. 

(e) In case of indeterminate punishment, the question of its 
termination as well as that of the new punishment to be im- 
posed as provided in §§ 20, 21, and 22, will be passed upon 
by the same court which pronounced the original sentence. 

§ 36. Review by Higher Court. — (a) Proceedings for review 
will lie: 

(1) When the judgment has not received the unanimous 
concurrence of the members of the trial court. 

(2) When proof is adduced that the adjudication of guilt 
or innocence has been brought about by perjury or other 
punishable facts; or 

(3) When there has come to light new evidence capable 
of changing the resylt. 

(b) Irregularities of procedure assigned as error in the 
court of review (“cour de cassation”) will be ground for 
reversal (“nullité de la procédure’’) only when it appears 
that the informality complained of has materially influenced 
the decision of the lower court. 








APPENDIX A 


ENFORCED REPARATION AS A SUBSTITUTE FOR 
IMPRISONMENT 


For the purpose of exhibiting the more detailed working 
out of the plan of enforced reparation advocated in the text,! 
it may be useful to reproduce here the paper which I read 
on that subject at the International Penitentiary Congress 
of Brussels, 1900. 

The question was thus stated: “On the basis of the views 
expressed by the Congress of Paris, what would be the most 
practicable means of insuring payment by the offender of the 
indemnity due to the victim of his crime?” 


Papper Reap sy M. RarraEteE GAROFALO 


SusstituteE ProcuratoR-GENERAL AT THE CouRT OF 
CAssATION, RomE 


I 


My efforts to direct the attention of the legal world to the 
present question — in my judgment, one of the first import- 
ance for criminal legislation, — belong now to a good many 
years. As early as 1885, I laid before the Penitentiary Con- 
gress of Rome? certain proposals embodying my ideas with 
reference to the proper means of enforcing payment of in- 
demnity by offenders. And a number of Congresses of 

1 Ante, pp. 226-228, 389-391, 396-398. 


2 See Actes du Congrés pénitentiaire international de Rome, 1885, pp. 
185, 191. 


420 CRIMINOLOGY [App. A 


“L’Union Internationale de Droit Pénal,”! the Penitentiary 
Congress of St. Petersburg, 1890, as well as the Juridical 
Congress of Florence, 1891, bear witness to my continued 
insistence in this regard. 

These efforts, perhaps, have not been unavailing. In his 
paper read before the Congress of Christiania, 1891, M. Prins 
recognized the practical importance of my programme.? He 
added that “the idea need not be feared on the ground of 
novelty: on the contrary, it represents return to a principle 
of the ancient law”; that there was no occasion “for gain- 
saying the propriety of reaction against the narrow theory 
which attributes a magical virtue to the prison”; and that 
“‘while the obstacles to the idea’s practical application are by 
no means to be overlooked, it is necessary to examine as to 
how far it would be possible to introduce it in the prevailing 
system of repression.” 

Finally, I had the pleasure of seeing the question made the 
order of the day at the Congress of Paris, 1895. It was formu- 
lated in the following terms: 

“Does the criminal law of the present day furnish the victim 
of a crime with sufficient means to obtain the indemnity due 
him from the offender?” 

That the answer had to be in the negative was a foregone 
conclusion. The Section charged with the examination of the 
question adopted the following resolution: 

“(1) The criminal law ought to take into account, to a 
greater extent than it does today, the necessity of insuring 
due reparation to the injured person. 

““(2) If the complaint of the injured person is held to be 
well-founded, judgment for costs should never go against the 
civil party.* 

“The civil party who merely joins his action to that already 

1 See my papers read before the Congress of Brussels, 1889, and the 
Congress of Paris, 1893. 

2 Paper of M. Adolphe Prins, upon the second question, in the Bulletin de 


l'Union internationale de droit pénal, July, 1891, pp. 128, 131, 135. 
3 [See ante, p. 340, note 1. — TRanst.] 


App. A] APPENDIX 421 


commenced by the Public Ministry, ought, in the event of de- 
feat, to be adjudged liable only for such costs as have been 
occasioned by his intervention. 

“(3) Where the case requires, it will be proper to extend to 
the injured person the benefit of official legal aid (“assistance 
judiciaire”’) before the court having jurisdiction of thecrime. 

(4) In the case of prosecution, either criminal or correc- 
tional, the Public Ministry will be required to submit to the 
court having jurisdiction (and without the payment of costs) 
the injured person’s claim for damages, subject always to the 
right of the Public Ministry to make proper recommendation 
touching the allowance or rejection of the claim. 

““(5) The indemnity allowed the injured person will be se- 
cured by a general lien (“privilége général’’) upon the real 
and personal property of the offender, to be enforced concur- 
rently with that of the government in respect of the costs of 
prosecution. 

(6) The Congress declares that the proposals which have 
been laid before it with reference to subjecting to the payment 
of the injured person’s claim a portion of the earnings of the 
convict in the course of his imprisonment, as well as with refer- 
ence to the establishment of a special compensation fund, 
out of which pecuniary aid could be afforded to the victim 
of criminal acts, call for the most serious consideration; but, 
believing that, as the case stands, it is not sufficiently advised 
to take immediate action in the premises, it decides to reserve 
the above indicated questions for more thorough examination 
by the next International Congress.” 

Although I was unable to take any part in the session at 
which they were adopted, these resolutions as a whole were 
strikingly in accord with the proposals which I had previously 
advanced, and especially with the conclusions of my paper 
read at the Juridical Congress of Florence, 1891. This 
fact goes to show that the insufficiency of the protection ac- 
corded the injured person is everywhere recognized in an 
equal degree, despite the differences in the criminal laws of 


422 CRIMINOLOGY [App. A 


the various European countries. The gentleman who read 
the committee report, M. Flandin, and the members who par- 
ticipated in the discussion, notably Dr. Lydia Poét, MM. 
Zucker, Prins, Armengol y Cornet, Eisenmann, Slossberg 
and more especially M. Leveillé, all expressed views similar 
to those set forth on this subject in my “Criminologie”; 
and my proposals as to the means of insuring effectual repa- 
ration were recommended to the Congress — among these, 
the plan of creating a special public fund into which would be 
paid the moneys arising from fines imposed by the courts, 
for the purpose of distribution among the victims of crimes 
and misdemeanors who had been unable to exact indemnity 
from the offender. 


II 


I have premised so much by way of excuse for returning 
in this paper to a subject upon which I have been harping 
for nearly twenty years. As M. Dorado-Montero remarks 
in an introduction to one of my works, it may be said that this 
question of reparation has “continually engrossed my atten- 
tion,” and that “single-handed at the outset, later supported 
by many other writers” of my school, I never “lost an oppor- 
tunity of urging the question, — succeeding finally in secur- 
ing the important and significant support of the “Union 
Internationale de Droit Pénal.”! This is why, at the risk 
of repetition, I have been unable to resist the desire of utter- 
ing myself anew, now that for the second time the question 
has been made the order of the day in the International 
Penitentiary Congress. 

But, first of all, it is necessary to anticipate the possible 
objection that the present paper is here out of place. The 
question in hand, it may be said, is a purely legal one. What 
interest then does it possess for a penitentiary congress? 
To be sure, the section in which we are is that of “Penal 


1 P. Dorado-Montero: Introduction to “‘ Indemnizacién 4 las victimas dei 
delito,” by R. Garofalo, pp. 14, 15 (Madrid). 


App. A] APPENDIX 423 


Legislation,’ — but are we not restricted, thus, to dealing 
with legislation which has in view the effects of punishment? 
In short, what connection is there between a method of insuring 
compensation to the person injured, and a science which espe- 
cially concerns itself with the treatment of prisoners, looking 
to their moral improvement as well as the safety of the public? 
Although perhaps not easy to be seen at the first glance, a 
relation does exist between the two, their points of contact 
being even more numerous than one might suspect. 

For one thing, compulsory indemnification would be a 
means of prevention much more potent than the menace of 
brief terms of imprisonment. If offenders were persuaded 
that, once discovered, they could in nowise evade the obliga- 
tion to repair the damage of which they have been the cause, 
the ensuing discouragement to the criminal world (and 
especially professional thieves and sharpers) would be far 
greater than that produced by the fear of a temporary curtail- 
ment of their liberty. 

It is not the risks, but the unproductiveness, of a trade which 
cause men to forsake it. Now, under present conditions, the 
trade of thief or sharper yields very considerable returns, 
in fact, much larger returns than many honest trades. The 
risk is only that of a few months or years in prison. As 
against this, moreover, the wrong-doer may almost certainly 
count on being able to retain the proceeds of his criminal 
activity, because of the lack of any effective means to exact 
from him restitution and the payment of damages. His 
term expired, he withdraws the stolen moneys from their 
hiding place or receives them from the safe hands to which 
during his imprisonment they had been entrusted. What is 
true of forgers and fraudulent bankrupts is equally true of 
professional sharpers: the only difference is one of degree. 
They never make restitution; they never pay. In spite of 
repeated convictions, they sometimes grow rich; often, 
they have very considerable sums at their disposal — facts 
of which the judges cannot help being aware when they see 


424 CRIMINOLOGY [App. A 


such persons represented at the bar of the court by advocates 
who are not in the habit of giving their services for nothing. 
It cannot therefore be doubtful, that the trade would have 
fewer followers if the offender’s sense of security as to his 
hidden plunder were displaced by the certainty that, as an 
inseparable incident of conviction, he would be forced to make 
restitution or indemnity. 

But there is a second consideration of even greater impor- 
tance. What loads down the budget and renders difficult the 
improvement of the prison system and the individualization 
of punishment, is the excessive number of inmates contained 
in the prisons. This number is chiefly made up of a floating 
population serving short sentences of from eight or ten days 
to two or three months. In France the annual average of 
persons sentenced to terms not exceeding one year is more than 
120,000. Of these about 50,000 represent cases where the 
individual has to serve only from one to five days. Italy 
shows an annual average of about 100,000 convictions where 
the term does not exceed three months. In 1896 the total 
number of persons sentenced to three months or less in jail 
(“arréts”’) and to six monthsor less of other forms of imprison- 
ment (“détention et réclusion”’), was 174,902. To lodge 
and feed this army of offenders, — most of whom pass but a 
few days in the prisons, — entails an enormous expense. 
As I have said elsewhere, “beyond the evils which the citizen 
must endure from crime itself, he is called upon to support 
the increased burden of taxation necessitated by the main- 
tenance of these thousands of convicted offenders, — and this 
without the slightest social gain to counterbalance.” For 
it is evident that imprisonment for such short terms is wholly 
devoid of intimidatory effect. As for its reformatory effect, 
it is not worth wasting words on. The most optimistic cor- 
rectionalists must concede that before there can be any hope 
of the prisoner’s moral reformation, the time of detention 
ought to be sufficiently long to permit of his being taught a 
trade and made to acquire the habit of working. I deem it 


App. A] APPENDIX 425 


unnecessary to insist upon this point, namely, that there is 
no possibility of any marked improvement in the penitentiary 
régime or, more especially, of successful effort in the individ- 
ualization of punishments (i. ¢., in the acting upon different 
criminal natures by specialized means) until the average 
number of prison inmates can be cut down to proportions 
immeasurably smaller than it exhibits today. 

My ideas as to the solution of this problem, you perhaps 
already know. Approaching the question from the standpoint 
of the real necessities of society and the interest of the person 
injured by the crime, I would confine the use of the prison 
within comparatively narrow limits. Imprisonment I would 
admit only for terms of considerable length, and then only in 
the case of dangerous criminals, recidivists, offenders of ill- 
repute, and vagabonds incapable of labor. In lieu of brief 
terms of imprisonment, I would substitute coercive measures 
of extreme severity for the purpose of exacting indemnity 
from the criminal. In the case of minor offenses, the payment 
of such indemnity would afford greater satisfaction to the per- 
son injured, wipe out all traces of the wrongful act and render 
useless all measures of repression. 

I shall not here repeat the exposition of this system. That 
would take me too far afield and be at least an apparent de- 
parture from the terms of the present question. Yet I cannot 
refrain from testifying to my satisfaction in noting how much 
ground has been gained by these ideas, the same which on 
their first enouncement some twenty-five years ago were 
regarded as legal heresies. Today they meet with a very 
different reception. For example, the admirable work of 
M. Prins, “Science pénale et droit positif” (pp. 391-396), 
contains a chapter wherein the author, while pointing out the 
difficulties which the practical application of these ideas must 
encounter, takes a resolute stand in their favor. “The end 
to be attained,” he had previously said, in his paper read 
before the Congress of Christiania, “‘is simply that of intro- 
ducing the economic element into the system of repression, 


426 CRIMINOLOGY [App. A 


whenever possible. . . . A distinct result would be in our 
possession if the convict by his own diligent labor (being 
allowed his freedom for the purpose), or through the labor 
of his relatives, or even by the charitable aid of private persons 
or public officials who might interest themselves in him and 
his family, could afford due satisfaction to the private inter- 
ests affected by his wrongful act, and thus sometimes escape 
the whole or a part of a punishment involving the deprivation 
of liberty. . . . Such a reform can only be a matter of gradual 
accomplishment. It requires prudence and sagacity, and 
demands the attentive, thoughtful, and conscientious co- 
operation of the judiciary.” ! 


mi 


Enough has been said, I think, to justify discussion of the 
present question in a penitentiary congress. Reverting to 
its exact terms, what we are required to ascertain is the most 
practicable means of insuring indemnity to the person injured 
by a crime. 

The measures necessary are to be distinguished into three 
kinds: (1) preventive measures, having place before trial 
with a view to defeating any attempt on the part of the 
criminal, after conviction, fraudulently to convey his property, 
or make it otherwise unavailable on execution; (2) measures 
having place at the time of the trial; and (3) measures to be 
put into effect while the offender is undergoing his punishment. 

Before trial, the judge of instruction, or, where the offender 
is taken in the act, the Public Ministry, should have authority, 
as a precautionary measure, to attach (“a faire saisir’’) 
the personal property of the offender and to create a lien 
(“hypothéque,” “judicial mortgage”’) upon his real property, 
for the purpose of securing, not only the costs of prosecution, 

1 M. Prins, moreover, is not alone in this. Mr. Tallack, the Secretary of 


the Howard Association of London, has expressed the same views in a letter 
to the Times appearing in the month of June, 1899. 


App. A] APPENDIX 427 


but also the amount of compensation to be adjudged to the 
injured person. These measures should be resorted to, how- 
ever, only when in the opinion of the magistrate the evidence 
against the suspected person is sufficiently strong to bring 
about his conviction. This is why, although the attachment 
should be levied forthwith where the offender is taken in 
the act, it would be necessary in other cases to defer these 
steps until after the accused had been interrogated or had 
evaded the service of a preliminary warrant of arrest (“man- 
dat d’amener’’). In order that such measures may be effec- 
tive, a further requirement would be the adoption of legisla- 
tion, declaring void any alienation without consideration, 
or any payment of a debt before maturity, on the part of the 
offender, subsequent to the date of the crime. There should 
also be established a presumption of fraud in respect of any 
alienation or payment made by the offender after the date of 
the interlocutory judgment remanding him for trial, thereby 
placing upon his grantees or creditors the burden of establish- 
ing the validity of their claims. Presumptions similar to this, 
and indeed of much more stringent character, already exist 
in commercial law with reference to the case of bankruptcy. 
There would seem to be no good reason why a like rule should 
not prevail in criminal procedure. For the class here to be 
protected are not mere mercantile creditors, but the unfor- 
tunate victims of sharpers, forgers, and all the other species 
ofi criminals. ; 

At the trial, the Public Ministry should have authority to 
appear on behalf of the injured person (in case the latter is 
without counsel) and see to the proper presentation of his 
claim. The judge in pronouncing his decree will confirm 
the previous attachment and fix the amount of damages 
due to the claimant, or allow him a provisional sum pending 
their complete ascertainment. 

Although the measures, of which I have just spoken, 
will tend to fill a gap in criminal legislation, their practical 
importance is necessarily limited to the case of solvent 


428 CRIMINOLOGY [App. A 


offenders, individuals owning real property or at least some 
personalty. But the majority of criminals is not recruited 
in this class. 

For measures against insolvent offenders, recourse must be 
had to the sentence itself and its execution. To explain: 
insolvency means the absence of property subject to seizure 
on legal process: it does not signify absolute poverty or in- 
ability to earn money. Moreover, insolvency is very often 
feigned. The greater number of offenders are insolvent, al- 
though they are capable of earning money and do in fact 
acquire money, were it only by their crimes; or else they 
feign insolvency by hiding the proceeds of their thefts or 
swindling operations, or by investing these proceeds in in- 
come-producing securities, depositing them in banks, etc., 
in another’s name. Sometimes, indeed, it is even unnecessary 
to take such precautions. Forms of property exist which are 
exempt from legal seizure for whatever cause: in Italy, for 
example, funds deposited in the Government savings bank. It 
is by no means out of the question, therefore, to seek means 
of compelling insolvent offenders to return what they have 
misappropriated or to make compensation to the victim of 
their crimes. 

For this the ancient world had a very simple means, namely, 
that of involuntary servitude. As a rule, the debtor who 
either could not or would not pay, became the slave of his 
creditor. And even at a later day when, under the influence 
of more humane legislation, the “addictio”’ became in general 
superseded, it was retained in cases where the debt was occa- 
sioned by a crime.! The last remains of the institution are 
to be found in those restraints upon physical liberty, which 
with numerous limitations are still recognized as applicable 
to a defendant whose liability for damages is due to a felony 
(“crime’’) or misdemeanor (“délit”’). But, owing to the in- 
conveniences with which they are attended, these have now 
fallen almost entirely into disuse. 


1 When the debtor had merited punishment: “qui noxam meruisset.” 
See Livy, VIII, 28. 


App. A] APPENDIX 429 


It must nevertheless be conceded that the only means, 
worth considering, of coping with feigned insolvency is to 
deprive the debtor of his liberty. 

Nor have I any fear, at this point, of objection on the score 
that we have no right to do anything calculated to introduce 
a lack of uniformity in the procedure governing the execution 
of money judgments. I fail to see why an exceptional mode 
of proceeding should not be admissible in dealing with a 
debt founded on a crime. The obligation growing out of a 
criminal delict (“obligation ex delicto”’) is altogether of too 
different a nature from other obligations to justify the con- 
tention that it must be regulated by the same procedure. 
Is this anything to be dwelt upon? Is it not sufficient to point 
out that what the author of a criminal delict has violated is 
not merely a rule of conduct agreed upon by two or more 
individuals, but a rule of conduct adopted by society as a 
whole? And to note that, resultingly, since in civil transac- 
tions a man may protect himself against fraud, may surround 
himself with all sorts of legal precautions, civil injuries of a 
fraudulent nature are, for the most part, to be attributed to 
the creditor’s want of care or his too implicit confidence in 
the debtor? The defrauded person need not have dealt at 
all with an insolvent. If he did not take the pains to assure 
himself of his debtor’s honesty or financial standing, then the 
fault is his own. 

Quite otherwise is the case of an obligation arising from a 
criminal delict. No precautions are entirely adequate to 
safeguard us from the aggressions of a malefactor. More- 
over, there is a social interest requiring reparation of the dam- 
age occasioned by a criminal act; and this, in all cases, is 
an interest of much more importance to society than that of 
compelling a person to keep his promise. It is therefore per- 
fectly logical, for the purpose of exacting such reparation, 
to permit the use of much more stringent means than when 
the question is simply one of compelling respect for contracts 
freely entered into, for obligations “ex contractu”’ and “quasi 


430 CRIMINOLOGY [App. A 


ex contractu.” Since the origin of the two sorts of obligations 
is so diverse, why should not differences exist between the 
coercive measures respectively applicable? 

Beyond this I do not go. I am not urging that a special 
system of corporal constraint for obligations “ex delicto” 
in general be introduced in civil procedure: too many prac- 
tical difficulties stand in the way. But I do believe that where 
the obligation grows out of a crime, we can utilize the punish- 
ment itself as the means of insuring indemnification. 

In the first place, brief terms of imprisonment — the 
inutility of which is today generally recognized — should be 
abolished. The minimum term should be extended to a suffi- 
cient length and the offender (unless he is a professional crim- 
inal or recidivist) allowed to exempt himself from this form of 
punishment by paying, besides the costs of prosecution, a 
sum to be fixed by the judge as a fine for the benefit of the 
person injured. 

This is substantially equivalent to saying that the sentence 
should be conditional. Such is the form under which M. 
Prins has adopted these ideas. “If,” he says, “the convicted 
person satisfies the total amount of the civil judgment, within 
the period fixed by the court, the prison sentence will not be 
put into effect.” 1! It is apparent what far-reaching conse- 
quences would attend a legislative recognition of this very 
simple principle. A very large percentage of those convicted 
of the less serious offenses against the person (strikings, in- 
sults, defamation) or indeed of minor offenses against property 
(criminal breach of trust or obtaining money by false pre- 
tenses involving small amounts, simple theft, malicious mis- 
chief, and the like) or yet again, of offenses against decency 
unattended with scandal or serious consequences (the offering 
of indignities to a woman not in a public place, seduction of 
minors, abduction, adultery, and the like) would be eager 
to indemnify the person injured and pay the costs of prose- 


1 I have read somewhere that Norway passed a law of this character in 
1894. 


App. A] APPENDIX 431 


cution, rather than undergo a punishment whose minimum 
would be of considerable significance, say a term of one year 
in prison. There is room for hoping that this percentage 
would represent half, perhaps two-thirds of all the individuals 
found guilty of such offenses. 

By the adoption of such a measure the drain upon the tax- 
payer would be materially lessened, for not only would the 
public treasury be saved the expense of maintaining thousands 
of prisoners, but it would also be reimbursed for all expenses 
of prosecution. For the offender, this would be a much more 
serious punishment than if he were merely obliged to under- 
go a few days’ or weeks’ imprisonment. And finally, the 
aggrieved person would have the satisfaction of being com- 
pensated for his injury, a result which today seldom comes to 
pass. 

We turn now to crimes of a more serious character, to cases 
where the peace of the State demands that the offender shall 
be deprived of his liberty. Here we must note, however, the 
existence of an institution of comparatively recent date, which 
has found a place in the criminal laws of almost all the Euro- 
pean countries: I refer to conditional liberation. 

It is generally agreed that conditional liberation may be 
accorded to a prisoner serving a sentence of considerable length 
when there arises a presumption of his future good behavior. 
The difficulty lies in the test for determining this presumption. 
As is well known, expressions of regret and repentance on the 
part of the offender deserve but little attention, and the good 
‘conduct of a prisoner in his cell by no means warrants the 
belief that when set at liberty, he will not resume his former 
ways. When I had the honor, as a member of the Italian. 
Ministry of Justice, to be in charge of matters of conditional 
liberation, I put in practice a test which for most cases is 
in my judgment the only means capable of determining the 
question of the prisoner’s moral improvement. The individual 
usually sets store by money, especially money which he has 
earned. The convict sets greater store by it than the ordinary 


432 CRIMINOLOGY [App. A 


worker, for he is generally a peasant or laborer who has never 
succeeded in accumulating even the smallest sum. It is in 
the penitentiary that for the first time he is able to gather a 
little money. The case is not rare, in Italy, of convicts who, 
being in the prison or penitentiary for a long enough period, 
find themselves the owners of some hundreds of francs, — 
sometimes as much as eight hundred or a thousand. Labori- 
ously earned, day by day, in the course of eight or ten years, 
this sum will be paid over to them upon their discharge.! 

It therefore occurred to me that if a convict should show 
himself disposed to give up the larger part of his savings for 
the benefit of the injured person, this would furnish much 
stronger proof that he acknowledged his wrong-doing and of 
his wish to make amends than any number of professions of 
repentance or promises of good conduct. To all who applied 
for conditional liberation, it was therefore proposed, at my 
instance, that they should pay over to the aggrieved person, 
a considerable portion of their savings — a half or two-thirds 
according to circumstances. Many were eager to do it. 
Others refused, and in their cases liberation was likewise 
refused. I paid but little heed to the recommendations of 
the prison directors. These gentlemen are not required to 
concern themselves with the crimes of their prisoners; they 
are not interested in the injured person, whom they have 
never seen; they care only for the prisoner, and it seemed to 
them hard to deprive him of his little hoard. Hard, indeed, it 
may be, but repression is not accomplished by mildness, and 
when one considers the number of murders committed by 
discharged prisoners, he cannot but note the absence of suffi- 
cient guaranties for the prisoner’s good conduct after release. 

1 Mr. Tallack, upon a visit to one of the Belgian prisons, found many 
inmates who had accumulated sums running into hundreds of francs. At the 
thought that on the expiration of sentence, this money would be placed at 
their absolute disposal, he could not help bringing to mind the plight of their 
victims, many of whom, robbed of everything they had in the world, must have 
been without even such food and shelter as is assured by the penitentiary. 


In Mexico, one-fourth of the proceeds of the prisoner’s labor must be paid 
over by the prison administration to the person injured. 


App. A] APPENDIX 433 


In lieu of apings, of mummeries, of ostentatious application 
to work, of services rendered to the prison administration, 
the only thing I took into consideration as a positive sign of 
repentance on the part of the prisoner was the voluntary 
relinquishment of his money for the benefit of the victim or 
his family. 

Thus it would be merely a question of putting in the form 
of law that which I was able to do as an administrative 
measure. 

Here, again, I am gratified to find myself in agreement with 
M. Prins. The learned Belgian criminalist would go still 
further: he advances the view that “at the end of a certain 
period of detention, the prisoner might be conditionally liber- 
ated, subject to the requirement that, within a specified time, 
he pay to the injured person the amount due as reparation. 
Upon the satisfaction of the debt, his liberation would be made 
absolute. Failure to pay in pursuance of the condition would, 
on the other hand, impose the duty of serving out the whole 
or the unexpired portion of the term, and under a more rigor- 
ous form of penal discipline.” And headds: “Any bona fide 
offer of reparation, in whole or in part, it ought to be con- 
ceded, coming at any time whatever after conviction should 
have the effect of doing away with the punishment altogether 
or proportionately reducing its term.” 

It will, of course, be understood that these last proposals 
would have no application to recidivists or habitual criminals 
or to the authors of murder, culpable homicide, robbery, or 
arson, — in short, of any of those great crimes with respect 
to which the social interest requiring the offender’s elimina- 
tion must outweigh the interest of the injured person. 

The only reasonable objection that can be urged against 
such a system is that it bears less heavily on the rich than on 
the poor. But this could be remedied by raising the amount 
of the indemnity in the case of rich offenders, while the poor 
offender would only be required to give up the amount of 
his savings. Moreover, it is impossible to establish absolute 


434 CRIMINOLOGY [App. A 


equality in repression. The prison itself, despite its outward 
uniformity, has all the difference in the world for different 
people. For persons accustomed to high standards of living, 
it is a continual torture; for others, it affords more comforts 
than their own homes and provides a life less fatiguing and 
more assured than that which was their portion when at 
liberty. 

I come to the last question, — that of a State fund to insure 
at least a partial reparation to the person who has been unable 
otherwise to obtain compensation for his injury. This fund 
ought to be constituted from the fines paid by convicted 
offenders. At stated periods there should be a proportional 
allocation of its contents between the claims, allowed and 
outstanding, of persons injured by crime on the one hand, and, 
on the other, of persons who had suffered imprisonment for 
crimes of which they were afterwards shown to be innocent. 
A fund of this sort existed in the Kingdom of the Two Sicilies 
as well as in the Duchy of Tuscany, but it never appears to 
have been of much service to claimants, as the treasury always 
put it under contribution to defray the expenses of the courts. 
At the present day, the’ question is largely a financial 
one, since such a fund in taking over the fines now accruing 
from police offenses (“contraventions”’) and certain species of 
misdemeanors (“délits’’) would necessarily deprive the budget 
of one of its resources. I hardly think that the Ministers 
of Finance will yield a ready assent to the proposal. But their 
opposition must be overcome, the more so, as the item does 
not exceed a few millions a year.1 The accomplishment of 
this will mark a definite gain for the principle of reparation. 
Moreover, — and it is this very thing that must be particu- 
larly impressed upon the law-makers, — we are dealing here 


1 So far, I have been unable to obtain figures as to the total collection of 
fines in Italy. Mr. Tallack is under the same handicap as to England, but 
informs us that in Scotland the annual revenue from this source is £40,000. 
In France, from 1896 to 1900, the average annual amount of fines collected 
was 2,831,102 francs (“Compte général de l’administration de la justice 
criminelle,”’ p. exii). 


App. A] APPENDIX 435 


not with a question of private law, but with a matter of justice 
and social security. It will be a long step in advance when the 
State comes to regard as a public function, the indemnifi- 
cation of the person injured by criminal delict. 


1 At the same Congress, M. Prins again pronounced for these views, and 
brilliantly sustained them against attacks of the classical school. M. du 
Mouceau, Procureur de la République at Beaune (Céte-d’Or), who read a very 
important paper upon the same question, proposed the creation of an Indem- 
nity Fund, maintained, notably, by fines proportionate to the income of the 
law-breaker. Every sentence of imprisonment should carry with it a fine, 
which, even in the case of extenuating circumstances, should not be less than 
the regular daily income of the convicted person for a period equal to the length 
of his sentence. This system would possess the double advantage of being 
entirely equitable and, at the same time, of insuring the Treasury a source of 
revenue wherewith to repair all items of damage. M. du Mouceau’s paper 
also contained certain suggestions, similar to those set out in mine, as to meas- 
ures for preventing the offender from disposing of his property. He further 
urged (as I had done at previous Congresses) that remission of punishment 
should never be granted except upon condition of indemnification, total or 
partial, according to the means of the offender, unless the latter clearly es- 
tablishes his inability to meet this obligation. 


APPENDIX B 


COMPARATIVE STATISTICS OF CRIME 


Ir would be of much interest to have at command a table 
exhibiting the number of different crimes periodically com- 
mitted in each of the civilized countries. Unfortunately, 
the attainment of such comparative data is hedged about with 
all sorts of difficulties, principal among which are the diver- 
sities of police organization and the scope of police functions, 
the differences in the criminal laws, and the absence of any 
uniform statistical method. Attempts have nevertheless 
been made to institute some comparisons between certain 
groups of crimes, the inquiry, however, being limited to a few 
States whose administrative and judicial differences, with 
respect to the groups considered, are not such as to be alto- 
gether prohibitive. 

Thus M. Bodio, Director General of Statistics in Italy, 
has, for crimes of homicide, strikings and woundings, and 
theft, succeeded in comparing Italy, France, Germany, Spain, 
Belgium, Austria, England, Scotland, and Ireland. These 
comparisons were subsequently brought down to 1899, by 
M. Bosco, Professor of Statistics at the University of Rome, 
to whose latest work (“La delinquenza in varii Stati d’ Eu- 
ropa”) I am indebted for the following table: 


437 


APPENDIX 


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SUONVANAGSIPL GNV SHINOTA 





438 CRIMINOLOGY [App. B 


Homicides. — From the foregoing it appears that of the eight 
countries included, Italy and Spain head the list, as to homi- 
cides, exhibiting, for the period 1895-1899, a respective annual 
average of 6.43 and 4.90 convictions for each 100,000 inhabi- 
tants. Moreover, the figures for Spain would have been much 
higher were it not that in the Spanish statistics attempts to 
kill by means of fire-arms form a class apart, there being, in 
1899, 1,633 convictions for this offense. 

Next follow Austria with 1.72 and France with 1.24 as their 
annual averages per 100,000 inhabitants, the former, during 
1894-1898 and the latter during 1895-1899. 

Ireland (1895-1899) and Germany (1897-1899) take third 
place, each having less than 1 and more than .50 for the same 
quota of inhabitants. 

England and Scotland come last, since the one, from 1895 
to 1899, the other from 1897 to 1899, showed annually less 
than .50 convictions per 100,000 inhabitants. With reason, 
it may be said that in Great Britain the crime of murder 
tends to disappear. 

Hungary is not included in this table, but statistics of a 
somewhat less recent date, require it to be assigned a prom- 
inent place. From 1885 to 1899, the annual average per 
100,000 inhabitants of convictions for murder (exclusive of 
infanticide) was 7.50, the actual number being 1,262. 

Holland, Denmark, Sweden, and Norway, according to 
statistics of the same period, rank with Ireland and Germany 
in that they give an annual average of less than 1 and more 
than .50 per 100,000. 

Belgium falls in the second class, approaching Austria and 
France, with 1.48 per 100,000. 

Still following M. Bosco’s data, we find Russia in Europe 
given an annual average, from 1885 to 1889, of 3,266 convic- 
tions, or 3.71 per 100,000. It would thus occupy an interme- 
diate position, below Hungary, Italy, and Spain and above 
Austria and France. But the figure mentioned is very different 
from that we would be led to fix by the official statistics of the 


App. B] APPENDIX 439 


Russian government for 1901. According to this recent source 
of information, the number of homicides of every description 
reported to the judges of instruction in that year attained 
the enormous total of 15,326. The population being estimated 
at 113,629,270, it follows that the proportion per 100,000 
inhabitants would be almost 13.5. These statistics, it is true, 
do not furnish us with the number of convictions, but assum- 
ing, on the one hand, that convictions ensue for two-thirds 
of the accused and, on the other, that two or more persons are 
often implicated in the same crime, it must be concluded 
that in respect of the number of its murders, Russia holds 
the foremost place in Europe, except, perhaps, for Greece and 
the Danubian and Balkan States, whose statistics we do not 
possess, but which we know must have a very high proportion 
of this species of crime. 

It is important to notice, however, that there is a great 
difference between the proportions of the Russian, Little 
Russian, and German provinces on the one side, and those of 
Poland, the Caucasus, Georgia, and Armenia, on the other. 
The three last, grouped under the heading “Judicial Court of 
Tiflis,” show especially high figures. In a population of 
9,201,710, the number of homicides reported to the judges of 
instruction was 5,045 — about one-third of the whole number 
in the Russian Empire. These regions would therefore show 
almost 55 homicides per year for each 100,000 inhabitants. 
If we exclude the district of the Judicial Court of Tiflis, the 
average for Russia falls to 10 per 100,000. The case would be 
analogous to that of Italy if we left out of view the Southern 
provinces. Poland, also, with 1,172 murders for about nine 
and one-half millions of people, exhibits a higher amount 
of criminality of this sort than Russia proper (that is to say, 
the judicial districts of St. Petersburg, Moscow, Kharkoff, 
Odessa, Saratoff, Kasan, Kieff and Vilna), where out of a 
population of about 95 millions the number of homicides was 
8,790. . ; 

Assaults, ete. — We turn now to those attacks upon physi- 


440 CRIMINOLOGY [Ape. B- 


cal integrity which the English law groups under the term 
“assaults” and which in other criminal systems are designated 
as ‘‘strikings, woundings and actsof physical violence” (“‘coups, 
blessures, voies de fait’’). Here, at first glance, the propor- 
tions of the several countries appear to be very much changed. 
Austria, for every 100,000 inhabitants, has 304.52 convictions, 
Germany, 214.94, and Ireland, 227.36, while Italy shows but 
110.56 and France, 86.97. Italy thus would approximate 
England in the present respect, since the latter’s proportion is 
101.46, whereas its convictions for murder represent less than 
one-twelfth the number of Italy. But the lack of statistical 
uniformity forbids any conclusion from this resemblance. 
In the first place, the class denominated as “ assaults” is much 
more comprehensive than that of strikings and woundings 
and embraces cases of threats and minor attacks upon the 
person, which in France would be treated as mere police 
offenses (“contraventions”’). In England, furthermore, the 
person aggrieved, however slight his injury, nearly always 
puts the matter in the hands of the police, with the result that 
prosecutions of this character are very frequent. Moreover, 
criminal justice is speedy, and the offender is almost certain 
to be convicted. And finally, the excessive use of intoxicating 
liquors, still very prevalent in the lower classes, accounts in a 
large measure for the frequency of this species of crime, which, 
however, is steadily decreasing. 

As for Austria, although the proportion of strikings and 
woundings is comparatively high (almost three times that of 
Italy), it must be noted that prosecution in that country is 
always on official initiative, while in Italy and elsewhere, for 
the less serious (and, of course, the more numerous) offenses, 
it occurs only on complaint of the injured person; and very 
often in such cases no complaint is ever made. Then, again, 
racial differences have much to do with the offenses in question. 
Galicia and Bukowina (Poles and Ruthenians) and Carniola 
and Dalmatia (Slovenians and Serbo-Croatians) which to- 
gether form scarcely a third of the Austrian Empire, contrib- 


App. B] APPENDIX 441 


ute two-thirds of the total number of strikings and wound- 
ings.' On the contrary, the proportions are very low in the 
provinces where the German element predominates. 

But how are we to explain the high number of such offenses 
occurring in Germany? The reason would seem to be that 
prosecution is there more rigorous and is generally concerned 
with minor acts of violence. Even for the class of serious 
woundings (“‘gefihrliche Kérperverletzungen”’), the number 
committed with a knife or similar instrument is estimated at 
less than one-tenth of the whole number.” 

Unfortunately, as much cannot be said of Italy, where the 
knife continually plays a part in the most trivial disputes, 
or of Spain, where the “navaja”’ is the inseparable companion 
of the peasant and laborer. And yet, according to its official 
statistics, Spain would come last in respect to the offenses 
under discussion. This fact is principally due to habitual 
failure to make complaint, either because the injured person 
desires to take the law into his own hands, or because the 
results of a prosecution do not appear to him worth while. 

Thefts. — With respect to the category of thefts, it is to be 
observed that the countries most favorably circumstanced 
appear to be England and France, the former having but 123 
convictions per 100,000 inhabitants and the latter 106, 
as against 181 for Italy and 187 for Germany. The situation 
of Austria appears much more serious, since its proportion 
is 497 per 100,000 inhabitants. But here, again, we find 
that a large number of offenses considered as misdemeanors 
(“délits”) in Austria would be treated as police offenses 
(“contraventions’’) under the laws of many other States. 
Moreover, the fact that three-fourths of the persons con- 
victed were punished with less than eight days’ imprisonment 
indicates the unimportance of most of these thefts. It is the 
opinion of M. Bodio, that the differences between the Euro- 
pean countries in relation to this crime would be considerably 


1 A. Bosco, op. cit., p. 86. 2 Tbid., p. 109. 
3 Ibid., p. 71. 


442 CRIMINOLOGY [App. B 


less if one could take into account the relative facility of com- 
plaint and prosecution. 

Crime in General. — A word may be proper as to the ten- 
dency of crime in general. — Italy manifests a continual 
increase. The total number of felonies (“crimes”) and mis- 
demeanors (“‘délits’’) reported to the authorities, which was 
357,430 in 1887, rose to 511,682 in 1899. This is an increase 
of 344% per annum, while that of the population for the same 
period was only 1% per annum. In Germany, the number of 
convictions for the common offenses ascended from 309,720 
in 1882 to 440,534 in 1899; the proportionate increase of 
crime during this period was nearly double that of the popu- 
lation. Austria, as against 18,154 convictions for felonies 
(“crimes”) in 1865, had 31,000 in 1898; as against 202,193 
convictions for misdemeanors (“délits”) in 1875, 306,007 in 
1898. In Spain, the progressive increase in the common 
crimes which continued up to 1890, appears since to have 
abated. Between the annual averages for the periods 1891— 
1895 and 1896-1899, the difference is not very marked, — 
the figures being 20,102 and 19,943, respectively. As for 
France, we have already noticed that the total number of 
offenses, on the increase from 1861 to 1895, has since begun 
to exhibit a perceptible diminution. In England and Ireland 
the decrease is constant. Scotland, however, showed a slight 
increase during the closing years of the 1800s. 


oy he? Fe 
AK poor pa 
aes 








INDEX OF AUTHORS 


[Square brackets indicate citation in translator’s notes] 


ALBRECHT, 253. 

[ANDREws, 246]. 

ARAMBURU (DE), xxx, 25, 42, 43, 
45, 46, 53, 224. 

ARMENGOL Y¥ Cornet, 422. 

Ausry, 114, 196, 382. 

AVEBURY (Lop). See LUBBOCK. 

AZEVEDO (p’), 131. 


B 


Baaexor, 14, 108. 

Ba.uERInI, 131 

Bauzac (DE), 38 

Barzial, 329. 

BEBEL, 143, 144. 

BEccaRIA, 55, 370, 382. 

BaurranrScatta, 208, 211, 370, 
377, 379, 394 

Benzpixr, 67, 76, 79, 114, 115, 128, 

Bentuam, 55. 

Beret, 146. 

Berravtt, 56. 

Berrti.1on, 205, 212. 

Buock, 145, 175. 

Bopto, 436, 441. 

BonvEccHiaTo, 131. 

Borpier, 68. 

Bosco, 120, 436, 438, 441. 

BournEtT, 119, 193. 

BRIGHTON, 361. 

Brockway, 267. 

Bruck, ar 393. 

Buck1p, 1 

Buri ng 310, 311. 


Caset, 147. 

Cmsar (Juurus), 119. 
CARNEVALE, 221, 368 

Caro, 94. 

Carrara, 295, 296, 309, 310. 
Cazor, 210.. 

CHAUVEAD, 56, [321]. 
Cicero, 10. 





Coun, 309, 312. 

Couasannt, 43, 46, 48, 75, 117, 118, 
Cook (Caprain JAmss), 12. 
Corre, 67, 73, 131. 

CosEnzA, 331, 332, 341. 

Cruprl, 356, 359. 


D 


DanrTE, 222, 307. 

Darwin, 7, 8, 20, 140, 217, 258. 

DELAUNAY, 7 1. 

DELLEPIANE, 102. 

DespIne, 66, 81, 98, 183, 187, 261, 
264, 266, 375. 

Dorapo-MonreEro, xxx, 422. 

DosrorrFFsky, 78, 83, 85, 86, 87, 
89, 90, 19. 

Drago, 82, 101. 

Dract, 50. 

Drucker, 187, 188. 

Dv B1Lep, 80. 

Du Movucgat, 435. 

Ducp&tiaux, 211. 


E 


EISENMANN, 422. 
ELLERO, 356. 

Exuis (HAVELOCK), Xxx 
Esprnas, 52, 258. 


F 
Fant, 393. 
FARINACCT, 325. 


Fert, 67, 69, 70, 71, 73, 118, 132, 
143, 162, 163, 172, "181, 182, 184, 
185, 189. 

FERRUS, 66. 

FEUERBACH, 245, 297. 

FILANGIERI, 55, 242, 246, 249, 370. 

FIorerTtI, 98, 99, 281, 391. 

FLANDIN, 422. 

Fo.ey, 71. 

ForEL, 79. 


446 


ForNASARI DE VERCE, 160. 
Fourie, 44, 47, 181, 259. 
FourIER, 147, 

Franck, 56, 145, 286. 
FRASSATI, XXX, 31, 287. 
FREULER, 380. 


G 
GaBELLI, 113. 
ALL, 66. 
[Gargon, 59, 151, 333]. 
GAROFALO, 79, 


<Ex, REXIV,0 4; 
82, 143, 269, 303, 304, ‘B18, 326, 
342, 343, [344], 391, 420, 422. 
[Garravp, 24, 292, 331]. 

GAUTIER, 7 1. 
GEYER, 309, 310, 312, 318. 
Guizor, 56. 


H 


HAa&ckKEL, 257. 

Havs, 56, 325. 

HAUSSONVILLE (D’), 138, 158, 159, 
08, 394. 

HeceEr, 75. 

Héuim, 56 [321]. 

HeERBETTE, 260. 

Herz, 310. 

HOouIinsHED, 247. 

HourzenDorFF (von), 240, 296, 

375. 
Hugo, 27. 


JACOBY, 253. 
JEANVROT, 266. 
JHERING, 58. 
JUVENAL, 17. 


K 


Kan (van), xxx, 160. 
Kant, 231, 

[KEANR, 107]. 
KNECHT, 69. 
KRaAEPELIN, 269. 


L 


LACASSAGNE, 179. 
[LacoInTA, 321]. 
LAMARTINE (DE), 124. ° 
LAUVERGNE, 66, 71, 382. 
LAVELEYE (DE), 143. 

Lz Bon, 122, 124. 





INDEX OF AUTHORS 


[Lz Sueur, 60]. 

LEVEILLE, xxx, 393, 422. 

Livy-BRUHL, 82. 

Liszt (VON), XxIx, 238, 269, 272, 
310, 312. 

Livy, "428. 

Lomproso, 66, 68, 69, 70, 72, 75, 
81, 85, 105, 106, 183, 186, ’206, 
252, 286, 291, 293. 

Lozano, XXX, 42. 

Lussock, 17. 

Lucas (BERNARDO), 131. 

Lucas (CHARLEs), 166. 

Lucas (PRosPER), 66 

Luccuint, 46. 


M 


Maaenan, 110, 260. 

Marne (Sir H. S.), 356. 

Matruvs, 181, 183, 189. 
MAncinI, 327. 

MANOUVRIER, 71. 

a 67, 68, 69, 72, 93, 160, 291, 


MARUvccl, Xxx. 

Marx, 246, 247. 
MaspEro, 27. 

Mattos (px), xxx, 131. 
Mavups.ey, 9, 103, 280, 285. 
Mayr, 161. 

MENDES MARTINS, XXx. 
Minztorr, 205. 
Mrrretstapt7, 264. 
MirrerMarEr, 56. 
MoppErMann, 187. 

Mo tet, 260. 

Moret, 81, 83. 
Mors, 66. 

Moreno, 269. 
(Mortara, 195]. 


N 


NEWMANN, 62, 201. 
Niceroro, 161. 
Nicoxtson, 66. 
NIerzscHeE, 139. 
Norpav, 17. 
NOVELLIS (DE), 364. 


O 


Ontvecrona (p’), 210, 225, 395. 
OrRANO, 329. 
ORTOLAN, 56, 318. 


INDEX OF 


OsEenBRUGGEN, 309. 
OTTOLENGHI, 67. 
Owen, 143, 144. 


is 
PAULHAN, 282, 304, 


Perez, 259, 291. 
Pessina, 275. 


PIPERNO, 274. 

Puato, 231. 

PiurarcnH, 12. 

Por (Ep@ar Aun), 103. 

Por (Dr. Lyp1a), 422. 

Potztti, 166, 167, 170, 171, 173, 
174, 176, 301, 

Prins, xix, xxx, 75, 76, 238, 
ay 420, 422, 425, 426, 430, 433, 


Prot, D6. 2.6 
Pua.is, xxx, 281. 


Q 


[QuaTREFAGEs, 107]. 
QUETELET, 163, 179. 


R 


Rernacu, 211, 225, 328. 

Risor, 62, 94, 252, 266. 

Romaenosi, 55, 135, 167, 180, 181, 
238, 245, 297. 

Rossi, 56, 57, 294, 295, 297, 315, 
316, 318, 322. 

Rousseau, 370. 


Sera, 31, 110, 261. 
SHAKESPEARE, 105, 307. 
SIGHELE, 48, 122, 124, 125, 290. 
SILVELA, 359, 362. 





AUTHORS 447 


SLossBErG, 422. 

SPENCER, 7, 10, 18, 21, 25, 30, 140, 
141, 228, "241, 264, 349, 371 Li 

SPERANZA, 291.’ 

Srantey (Lorp), 264. 

[StePHEN (Sir IF. ), 59, 194, 200, 
247, 333, 340, 341, 345, 355]. 


124, 138, 164, 170, 172; 175, 182, 
203, 213, 240, 274, 281, 315, 316, 
337, 356. 

TAVERNI, 260. 

TAYLOR, 98, 286. 

THomMsoNn, 66, 92. 

THONISSEN, 220. 

ToLsrot, ae 145, 148, 155. 

TOPINARD, 71, 107. 

TREBUTIEN, 56. 

TURATI, 144, 150, 153. 

Tes, 199, 206, 349, 358, 360, 


Vv 


Vaccaro, 46, 47, 48. 

VENTURI, 253, 254. 

Virerio, 66, 68, 92, 99. 
VIVEIROS DE CASTRO, Xxx, 399. 
VuceticH, 212. 


WwW 


[Wauuace (Str D. M.), 87]. 
WaRNER (Cuas. DupDLEy), 267. 
WILLERT, 


x 
XENOPHON, 12. 


Zoua, 155. 
Zorut, 143. 
ZUCCARELLI, 122. 
ZUCKER, 422. 





SUBJECT INDEX 


(Numerals in bold t distinguish references to Part IV: “‘ Outline of Principles Sug- 
gested as a Basis for an International Penal Code.”’) Z 


A 


Abduction, 40, 386. 
Abnormality of criminals, xxv. See CriminaL ANOMALY; PHysicaL 
ANOMALY; Morat ANOMALY. 
Aborigines, of New Caledonia, 6. 
of Australia, 29. 
Abortion, among Polynesian tribes, 29. 
Accessory. See CRIMINAL PARTICIPATION. 
Accomplice. See CriminaL ParTIcrPATION. 
Accusation, system of. See PrRosEcUTION AND TRIAL. 
“Actes préparatoires,” 314, 318. 
Action. See Crimrau AcTION. 
Activity, Poletti’s theory of proportion between honest and evil, 165-177. 
See also PRosPERITY. 
Adaptation, The Law of, 217-269. 
Adaptation, as a criterion of punishment, 299-308. 
method of determining offender’s, 300, 301, 307. 
“ Addictio,” 428. 
Adolescents. See YourHruL OFFENDERS. 
Adultery, in some semi-civilized communities, 5. 
in Sparta, 12. 
and the elementary altruistic instincts, 36, 37. 
Advocates. See CounsEL. 
Affective sentiments deficient in murderers and homicidal criminals, 93, 


104. 
Africa, Central, murder from brutality among savages of, 6, 29. 
Africa, South, infanticide in, 29. 
Agamemnon, 28. : 
Age, of parents, as determining criminal aptitudes of children, 93. 
and moral responsibility, 290-293. 
as an element in determining adaptation, 300. 
change of, as modifying the character, 385, 411. 
differential penal treatment influenced by, 408. 
See also CHILDREN; Morat ReEsponsIBILity; YOUTHFUL OFFENDERS. 
Aggravated theft, 151, 198, 245, note 1, 300. 
in French and Italian law, explained, 151, note 1. : 
Aggravation, circumstances of, as distinguished into material and per- 
sonal, 321, note 2. 
attribution to co-participant, 321 and note 2, 322. 
Aggregation, violation of fundamental rules of particular, attended by 
exclusion, 218, 219. 
Agricultural classes, their contribution to criminality, 157, 158. 


450 SUBJECT INDEX 


ances re raced for youthful offenders, in France and elsewhere, 
good effects, 225, 395, 396. 
recommended, 269, 301, 388, 395. 
Aiguesmortes, murder of Italian workmen at, 361. 
Akimitch, Akim (in Dostoiefisky’s ‘House of the Dead’’), 90. 
Albania, the vendetta in, 49. 
brigandage in, 127. 
Albigenses, their persecution, 27. 
Alcoholic liquors, influence upon crime, 117, 185, 188. 
increase of consumption in France in 1800s, 162, note 1, 169. 
duties on, recommended by Ferri e¢ al., 182, 183, 187, 188. 
absolute prohibition of sale desirable, 187. 
Dutch excise law of 1882 fixing maximum number of taverns, 187, 188. 
Alcoholism, means of diminishing, 186, 188. 
to be distinguished from drunkenness, 287. 
See also DRUNKENNESS. 
Ali (in Dostoieffsky’s ‘‘House of the Dead’’), 89, 90. 
Alienation, mental. See INSANITY. 
Alienation of property. See FRAUDULENT CONVEYANCE. 
Alienist experts, harm worked by, 287 
Altruistic sentiments, elementary, 19-33. 
represented by benevolence and justice, 19. 
z. €., negative pity, 23, 25, 29. 
and elementary probity, 31. 
their evolution, 19, 25, 26, 27, 30, 32. 
offenses violating, 34 et seq., 40, 41. 
offenses not violating, 34 et seqg., 41-45. 
See also BENEVOLENCE; Justice; Prry; Proprry; NATURAL CRIME. 
Ambrogio, Frate, 114. 
Amnesty, its encouragement of professional offeriders in Italy, 209. 
its abolition recommended, 369, 406. 
Analgesia, 92. 
Anatomic characteristics. See Paysican ANOMALY. 
Andaman Islands, 393. 
Anger not sufficient to explain an act of cruelty, 116. 
See also Passion, CRIMES OF. 
Animals, sympathy for, a late moral acquisition, 20, 27, 44. 
Anomaly. See Crirvat ANOMALY; PuHysicaL ANOMALY; Moran 
ANOMALY. 
separ este criminals an element in determining question of adapta- 
tion, i 
Anthropologic data as to criminal anomaly, 65-79. 
mentioned, xxv. 
Anthropologie type of criminal, Lombroso’s theory, 66, 67. 
its existence not established, 70 et seq. 
physiognomic types, 72-79. 
Tarde’s theory of professional or social types, 75, 76. 
Anti-religious bias, condemned by Spencer, 141. 
Appeal, Courts of, in France and Italy, 193, note 3. 
Arrested development, and theory of prehuman atavism, 110, 111. 
Arson, 41, 198, 289, 407. 
Asp6 Islands, characteristics of inhabitants, 113, 119. 
“ Assassinat,’’ defined, 200, note 1. 
in French Code includes all crimes involving infliction of physical 
torture, 374. 
Assault, statistics of, in United Kingdom, 437, 440. 
See also STRIKINGS AND WOUNDINGS. 


SUBJECT INDEX 451 


Assizes, Courts of, in France and Italy, 193, note 3. 
See also Jury. 
Association. See AGGREGATION. 
Assur-nazir-pal, 27. _ 
Asylum for criminal insane, its selective and intimidatory effects, 285. 
6 aia in, recommended for certain offenders, 386, 388, 399, 


Asymmetry of the cranium or face among criminals, 67. 
Atavism, as a source of psychic anomaly, 9, 105-109. 
theory of prehuman, 110, 111. 
phenomena of, to be reckoned with in children, 259. 
mentioned, 71, 261. 
Attempt to commit crime. See CrimmnaL ATTEMPT. 
“Attentat 4 la pudeur,’”’ 121, 339. 
Atypic deformations of the cranium, 69. 
Atypic traits, 109. 
Australia, aborigines of, 29. 
Austria, recidivism in, 95. 
violent crimes in Slavic provinces of the South, 119, 440, 441. 
effect of mitigation of punishment, 202. 
statistical data as to crime, 202, 437 e¢ seq. 


B 


Baden, former code of, in re attempt by insufficient means, 312, note 1. 
Bail, in Spencer’s theory of restitution and liberation, 228, 229. 
in French and Italian law, 345, note 2. 
indigent exempted from, by Italian law, 348. 
Baldness, its infrequent occurrence in criminals, 67, note 1. 
Bankruptcy, criminal, 41, 149, 151, 202, 204, 227. 
in French and Italian law, 41, note 1. 
non-criminal, results in loss or suspension of various political and 
civil rights in France and Italy, 183, note 1. 
Bankrupts, criminal, 407. 
‘‘Banqueroute,”’ 41 and note 1. 
Bastille, 123. 
Battas of Sumatra, 6. 4 
Bavaria, observations in, as to relation between crime and price of 
breadstuffs, 160, 161. 
Beard, absence of, among criminals, 67, 69. 
Belgium, recidivism in, 95. 
violent crimes in Flemish provinces, 119, 120. 
refusal of Government to execute death sentences, 370, 379. 
savings by penitentiary inmates, 432, note 1. 
statistics of homicide, 438. 
Beneficence, confined to a small number of persons, 20. 
its negation not crime, 22. 
Benevolence, an elementary altruistic sentiment, 19-23. 
its evolution, 19. 
its degrees, 20-23. 
negative pity the degree universally prevalent, 22-25, 29. 
Bertillon system of identification, 212, note 2. 
Bibliography of author’s system, xxx, note 1. 
of criminal insanity, 131, note 1. 
Birth certificates, mentioned, 41, note 3. 
forged, easily procurable by criminals, 205. 
Bizygomatic diameter, 71, note 3. 


452 SUBJECT INDEX 


Blame or praise accorded to actions without reference to causality of 
pablo Ego, 304, 305. 
Blasphemy, 16. 
“Blessures,” 163, 202. See also ‘‘Coups ET BLESSURES.” 
Blondin, Adéle, murder of, 82. 
Bloodshed, instinct for, may exist irrespective of age, 291, 292. 
See also "MuRDERERS; VIOLENT CRIMINALS. 
“Bons de travail,” 148. 
Born criminal, in Ferri’s classification, 132, 133. 
may sometimes be recognized in the child, 291. 
Brachyprosopy, 71, note 3. 
Brawls, tavern, 117, 375. 
Breach of trust, criminal, 41, 202, 205, 226. 
See also Fraup. 
Breadstuffs, cornering of, efc., once a crime, 5. 
fluctuations of prices in relation to crime, 160-163. 
Breconshire, violent crimes in, 120. 
Brigandage, formerly in vogue among peoples now civilized, 5. 
of Scottish Highlanders, 120, 127. 
in Calabria, Greece, Servia, and Albania, 127. 
among Normans of Middle Ages, 127. 
outbreak in South of Italy, in 1861, put down only by application 
of death penalty, 379. E 
Brunswick, 2 desea code of, in re attempt by insufficient means, 312, 
note 1. 
Bushmen, 107. 


Cc 


Calabria, brigandage in, 127. 
“Calomnie,”’ 24, 40, 121, 386, 408. 

explained, 24, note 1. 
““Calomnieuse dénonciation,’’ 24, note 1. 
“Calunnia,” 24, note 1. 
Camorra, vendettas of, an example of endemic criminality, 112. 

responsible for many cases of extortion, 151. 

its influence upon Neapolitan juries, 359. 
Cannibalism among savages, 6, 29. 

of Richard Coeur de Lion, 26. 
Canstadt skull, 107. 
Capacity for crime, indicated by every natural crime, 239. 

ee also ADAPTATION; MorAaL ANOMALY. 
Capital punishment, in Roman law death or exile, 220 and note 1. 

ee also DeaTH PENALTY. 
“Carabinieri,” 359, note 3. 
““Carcan,”’ 246, note 1. 
Caries, 92. 
“‘Casiers judiciaires,’”’ explained, 291, note 2. 

mentioned, 291, 334, 369. 
Cassation, Court of, in France and Italy, 193, note 3. 
Castruccio, Ruiz, case of, 82. 
Casual offender non-existent, 95, 96, 121, 122, note 1. 
Cellular prisons in France and Italy, 208, note 1. 
Ceylon, custom of offering host’s wife to guest, 16. 
“Chambre d’accusation,” 193, note 3. 
Character, race and climate in relation to, 118, 120. 

its modification by education basis of correctionalist theory, 255. 

fixity of its type, 261. 

as basis of responsibility, 281, note 1. See also NaturaL CRIME. 


SUBJECT INDEX 453 


Chastity, not an elementary altruistic instinct, 16, 17. 
wa re of, without coercion or seduction, not natural crimes, 
, 35. 
__ offenses against, as influenced by temperature, 118. 
Children, efficacy of religious and moral instruction limited to case of, 
? ? . 
only intelligent study of reformative treatment in case of adoles- 
cents and, 256. 
Marro and Lombroso on criminality of, 291, 293. 
birth of, as tending to transform character of mother, 385, 411. 
See also AG; YOUTHFUL OFFENDERS. 
Chile, commutation of death sentences in, 380, 381. 
Chinese, cruelties of European armies to, 27. 
lack of vulnerability frequent among, 115. 
Chrétien, 92. 
Christianity, adoption of its ethics influenced by conquests of Rome, 11. 
Chukchi, 6. 
Cincinnati riot of 1884, 53, note 1. 
‘‘Circonstances personnelles et matérielles,” 321, note 2. 
Civic degradation in French penal law, 59, note 1. 
Civil party, in French and Italian criminal proceedings, 340, note 1. 
roposed modification of procedure concerning, 420. 
Civil status, suppression of, 41, note 3, 408. 
Civilization, and racial character, 119, 120. 
in relation to crime, 135-137. 
what constitutes true, 135, 167. 
Poletti’s theory of proportion between crime and. See PRospPERITY. 
Civilized man, anatomically inferior to savage, 253, note 1. 
Classes of criminals. See CLASSIFICATION. 
Classical school, its notion of the criminal, 271, note 2. 
its view of justice as a regulator of punishment, 272. 
mentioned, 271, 290, 308. 
See also JuripicaL ScHooL. 
Classification, of natural crimes, 40, 41. 
of offenses in French and Italian systems, 59, note 1. 
of offenders in author’s system, 111-132, 134, 222, 223, 406. 
(1) Murderers, 111, 112. 
(2) Violent criminals, 112-125. 
(3) Criminals deficient in probity, 125-130. 
(4) Lascivious criminals, 130, 131. 
of offenders according to Ferri, 132-134. 
Clemency, executive, 368-371. 
Climate, its influence on crime, 117, 118. 
Coaction. See PsycHoLtoaic CoacTIon. 
Code. See Lecat Disopeprences; PenaL Cops; Pontce OFrrEeNsEs. 
Code Napoléon, 325, note 2, 330. 
Coerciveness, its utilitarian origin, 241. 
Collective crime, question of, 123-125. 
Collectivism, and sentiment of probity, 31, note 2. 
according to socialists, an end of crime, 143, 144, note 1. 
Commercial classes, their contribution to crime, 158. 
Commercial crises. See Economic DisTuRBANCES. 
Communism, idea that it would mean cessation of crime, 143, note 1. 
Compensation Fund, for benefit of injured persons and State, 390, 
413, 434. 
how to be constituted, 390, 434. 
allocation of its contents, 435. 
existed in Two Sicilies and Duchy of Tuscany, 434. 


454 SUBJECT INDEX 


Compensation Fund (continued), Du Mouceau’ 8 suggestions, 435, note 1. 
See also REPARATION. 
Complaint. See Cromnat AcTION. 
““Complicité,” 321 and note 1. 
Compulsory labor in proposed system of punishment, 390, 410, 412, 413. 
See also REPARATION. 

“Conatus remotus,”’ 314, 318. 
Concentration of crime, tendency to, 177, 211, 212. 
“Concours de plusieurs délits,” 323. 
Conditional liberation, 431-433. 
Conditional sentence, as advocated by Prins, 430. 
Conduct, superficial rules of, in contemporary society, 13. 

examples of, essential in moral training, 140. 

of prisoners in Italian penitentiaries, 210. 

motives of arising from repression, 240 et seq. 

the moral motive, 240-244. 
the motive of fear, 244 et seq. 
Conscience, and heredity, 258. 
Conspiracy. See PoxiricaL Cries. 
Contraction of facial muscles, in criminals, 67, 70. 
“‘Contravention” in French penal law, 59, note 1, 193, note 3. 
“‘Contravvenzione” in Italian penal law, 59, note L, 193, note 3. 
Convicts, Siberian, described by Dostoieffsky, 78, 83 et seq. 
Convictions, “criminal” and _ correctional explained, 59, note 1, 95, 
note 1. 

Cornu, Pére, a criminal mentioned by Moreau, 81. 
Correctional punishments, in French law, 59, note 1. 
Correctional Tribunals, 193, note 3. 
Correctionalist school, its theory of punishment, 255-269. 
Correctionalization of felonies (“‘erimes”’), 330, 335 
Corsica, the vendetta in, 49. 

persistence of racial character in, 119. 

salutary effect of severe punishment exemplified in, 192, 193. 
Counsel, not to participate in judicial investigation, 344, 414. 

oratory of, effect upon jury, 358. 
Counterfeiters of money, proposed punishment of, 400. 
Counterfeiting, 33, 41, 151, 407. 
“Coups,”’ 289, 389. 
““Coups et blessures,” 119, 121, 122, 188, 198, 227, 339, 346, 367, 437, 

440 


Court. See Jopen; Jury. 

Courts. See CRriMINAL Courts. 

Cranium, asymmetry of, in criminals, 67. 
atypic deformations of, 69. 

““Créance privilégiée,”’ 390. 

Crime, 1-62. 

Crime, at the present day, xxvi 
sociologic notion of. See oye CrIm™E. 
-tscinoaet to Vaccaro, 47. 


f, 
legal notion of, 54-60. 


iz a eaeeak not due to present economic order, 164. 
statistical data relating to. See under ~ names of the several 
countries, and also AppENprx B, 4 
as a trade, 203, 204, 423. 
pro} rtionality of punishment to. See PENAL PROPORTION. 
Bes ttao Cisse CLASSIFICATION; CRIMINALITY; COLLECTIVE CRIME; EN- 
wap Crime; PouiticaL Crimes; PUNISHMENT. 


SUBJECT INDEX 455 


“Crime” in French penal law, 59, note 1, 95, note 1. 
Criminal, THE, 63-213. 
Criminal action, distinction between public and private, 338-340. 
when State should initiate, 339, hia. 
cisey ll Anomaly, 65-134. See also Puysican ANoMALY; MorAbL 


OMALY. 

Criminal attempt, 308-321, 408, 409. 
objective doctrines of, 308-310. 
subjective theory of, 310-312. 
insufficiency of means, 309-313, 320. 
true theory of, 310-313. 
punishment of, 314-321, 408, 409. 


? a in, 314. 
i Courts of France and Italy, 193, note 3. 
Criminal defamation in French and Italian law, 24, note 1. 
__ _ (“diffamation”’) 24, 40, 227, 289. 
Criminal impulse, Romagnosi and Feuerbach’s theory of proportion- 
ing punishment to degree of, 297, 298. 
resistance to (7. e., moral sense) the thing to be measured, 298. 
Criminal Law, The Existing Theories of, 270-337. 
Criminal mobs, 122-125. 
Criminal participation, 321-323, 409. : 
classes of participants in French and Italian law, 321, note 1. 
attribution of | pie and material circumstances to co-partici- 
pant, 321 and note 2. 
Criminal period (Poletti), 170. 
Criminal 2g Saar a hereditary transmission of, 92-95. 
“‘Criminal’’ punishments in French law, 59, note 1. 
Criminal resolution in attempt, 319, 408, 409. 
Criminal sentiments, 82 et seg. See also Monat ANOMALY. 
re. specialties, school education may be determinative of, 
139. 
influenced by economic fluctuations, 164. 
Criminality not a disease, 98 et seq. 
See also CRIME. 
Criminals, need of their direct study, 61, 62. 
as viewed by classical school, 271, note 2. 
classes of. See CLASSIFICATION; MuRDERERS; VIOLENT CRIMINALS; 
Prosity, CRIMINALS DEFICIENT IN; Lasctvious CRIMINALS. 
See also Crime; CriminaL ANOMALY; PuysicaL ANOMALY; MoRAL 
ANOMALY. 
“Crimine,” in Italian penal law, 59, note 1, 193, note 3. 
Cro-Magnon skulls, 107. 
Crops. See Harvests. 
Cruelty, of savages and primitive peoples, 26-29. 
to animals and the sentiment of pity, 44. See also ANIMALS. - 
See also Prry. 
Culture, in relation to morality, 139. 
Customs. See SmuGa.ina. 
“Cyniques.” See Lascivious CRIMINALS. 
Cyprus, religious prostitution in, 12. 


D 
Dackle, Mme., murder of, 81. 
Dahomey, funeral sacrifices in, 28. 
Dalmatia, violent crimes in, 119. 
Damage. See REPARATION. 


456 SUBJECT INDEX 


Damages, enforcement of judgment for, in criminal cases, 340-343. 
present system, its inadequacy, 340, 341. 
measures advocated, 342, 343. 
See also CoMPENSATION Funp; Compunsory Lasor; REPARATION. 

Damiens, his execution, 233. 
Danton, 124. 
Death penalty, and taking life in war, compared, 51. 

justified by recognition of criminal anomaly, 104, 105. 

as means of elimination, 220, 410. 

inflicted on vagabonds in Tudor England, 247, 325, note 2. 

its intimidatory effect, 249, 377-382. 

question of its “‘justice,’”’ 271, 272. 

not to be inflicted on insane, 282, 283. 

when unnecessary, 307. 

demanded in case of Murderers, 376-379, 410. 

consequences of failure to apply in various countries, 379-382. 
Debtor, involuntary servitude of, in Roman law, 428. 
Decency, offenses against, 198. See also Pustic Decorum. 
Decorum. See Pusitic Decorum. 
Defamation. See Crimrinat DEFAMATION. 
Degeneracy, physical, characteristics of, among criminals, 69, 77. 

moral, as a source of criminal anomaly, 109, 110. 

not necessarily accompanied by physical, 110, note 1. 
“Dégat,” 227. 
Delicacy of moral sense, 14, 30, 155. 
“Délit,” in French penal law, 59, note 1, 95, note 1, 193, note 3. 
“Délit manqué,” 314, 317, 320. 
“‘Delitto,” in Italian pase law, 59, note 1, 193, note 3. 
Denmark, statistics of homicide in, 438. 
Desertion, military, a true crime in a state of warfare, 39. 
Determinism, 277. 
“Dévastation,” 41, 227. 
“Diffamation,” 24, note 1, 40, 227. 
“Diffamazione,”’ 24, note 1. 
Disease, moral anomaly as distinguished from, 96-104. 
Disobediences. See Lecau DIsoBEDIENCES. 
Domestic theft. See “Vou Domestiqus.” 
Draco, laws of, 223. 
Draconism, probable if intimidation used as a criterion of punishment, 
246 


Drunkards, sons of, among criminals examined by Marro, 93. 
nkenness, in relation to crime, 287-289. 
distinguished from alcoholism, 287. 
a determinant of criminal propensities, 288. 
punishment of crimes committed in a state of, 288, 289, 408, 414. 
Dubos, case of the woman, 81. 
Duel, variously regarded, 5. 
Du Launay, Marquis, his execution, 123. : 
Duty, sentiment of, its existence not established by reasoning, 262. 
Dwellings, invasion of. See ““VioLaTIon DE DomiciLE.” 


E 


Fars, peculiarities in their shape, found among criminals, 67, 70. 
Economic conditions in relation to crime, 142-165, 165-177. 
Economic disturbances, abnormal, their effect upon crime, 164, 165. 
Economic inequality, not a cause of crime in general, 164. 
Economic stress equal in all social classes, 148, 149. 


SUBJECT INDEX 457 


Education, effect of higher, upon moral development, 139. 
defects of, as cause of crime (Romagnosi), 180. 
its limitations as a reformative influence, 256 et seq. 
what the word properly signifies, 257. 
difficulty of distinguishing its effect from that of heredity, 258 et 
seq. 
cannot create faculties, 262 et seq. 
See also InuiTERAcY. 
Ego, the, in relation to free will, 65, 274. 
constituted by character and temperament, 105. 
in relation to praiseworthiness or blameworthiness of determined 
acts, 304, 305. 
mentioned, 48. 
Ego-altruism, honor classed by Spencer as a species of, 18. 
t, Arabs of, mentioned, 118. 
imination, natural law of, 217-219. 
as a reaction against crime, 219, 220, 410. 
means of, 220-226, 410. 
absolute or complete, 220-225, 255, 410. 
relative or partial, 225, 255, 410. 
in relation to various conceptions of punishment, 230-239. 
intimidatory effect, 249, 250. 
selective effect, 251-255. 
Elmira Reformatory, described, 266, 267. 
Embezzlement, 41, 149. 
Embryogenic evolution, 257. 
Endemic crimes, authors of, as a sub-class of Violent criminals, 112-115. 
punishment applicable, 192-197, 244, 384, 385. 
d, economic inequalities, referred to, 145, note 1. 
decrease of crime, 171, 202. 
statistical data as to crime, 202, 437 et seq. 
Environment, physical, its effect upon crime, 117, 118, 120. 
social, in relation to crime, xxxii, 96, 266. 
possibility of modifying, 178 et seq. 
change of, essential in treatment of certain offenders, 225, 394. 
Epilepsy, . Lombroso’s theory of its existence in the born criminal, 105, 


mentioned, 96, 102, 131, 280, 283. 
Erotomania, 281. 
Error, what, ground for reversal in proposed procedure, 416. 
“Escroquerie,” 198. 
Espionage, a true crime, in a state of warfare, 39. 
Eurygnathism, among criminals, 68. 

il eye, 113. 
Evolution of the moral sense. See Morat SEnseE. 
Excess in punishing. See PUNISHMENT. - 
Exclusion from membership, a reaction against violation of basic rules 
of particular aggregations, 218, 219. 

from society, a reaction against crime, 219 et seq., 410. 
Excuse, circumstances of, attribution to co-participants, 321, note 2. 
Exile, as a punishment of the French law, 212, note 1. 

in Roman law, 220, 347. 

as a form of elimination, 220, 221. 

local, 225, 250. 

mentioned, 331. 

See also INTERNMENT; MAROONING. _ i 3 ; ‘ 
Experimental method, its introduction into criminal science to be aimed 
at, Xxiii, xxiv. 


458 SUBJECT INDEX 


Expiation, its inadequacy as a principle of punishment, 230-232. 
mercies from particular environment as a means of elimination, 225, 
Extenuating circumstances, admission contrary to true principles of 
punishment, 329, 330. 
ill consequences of present rule, 200, 334-337. 
classing semi-insanity among, illogical, 286, 287. 
attribution to co-participant, 321, note 2. 
present rule to be abolished, 406. 
Extortion, 41, 150, 151. 
Extradition, international, 405. 
Extreme criminals. See MuRDERERS. 
Eyebrows, thickness of, in thieves, 71. 
Eyes, peculiarities of, found among criminals, 67, 70, 71. 


F 


Face, peculiarities in form of, found among criminals, 67, 71. 
contractions of, noticeable in criminals, 67, 70. 
Faculties, intellectual, not creative of instinctive cognitions, 262. 
moral, not created by education, 262. 
“Faillite,” 41, note 1, 183, note 1. 
“Fallimento,’”’ 183, note 1. 
False accusation (“‘calomnie’’), 24, 40, 121, 386, 408. 
False pretenses, 41, 198, 339, 407. 
Falsifiers (7. e., authors of various ‘‘crimina falsi’”’), 407, 408. 
Family, sentiments of, 35-37. 
Famine. See Economic DIstuRBANCES. 
Fatalism, not to be ascribed to the positivists, xxxi. 
“‘Faussaire,’”’ 407, note 1. 
“Faux,” 41. 
Features of criminals, 74 et seq. 
Fear, as a motive of conduct induced by repression, 244 e¢ seq. 
Female offenders, differential penal treatment proper for, 408. 
Fijians, parricide among, 6. 
mentioned, 101. 
Fines, amount of, collected annually in France and Scotland, 434, note 1. 
Fission, conscience a phenomenon of reproduction by, 258. 
Floods. See Economic DistuRBANCES. 
Fluctuations, economic, their effect on crime, 160-164. 
Force, irresistible, principle of, 276-279. 
Forehead, peculiarities of shape occurring among criminals, 67-69, 71, 76. 
Forgers, punishment of. See Proprry, CRIMINALS DEFICIENT IN. 
Forgery, 41, 149, 151, 202, 339, 408. 
France, juridical theories not dominant, xxviii, xxix. 
recidivism, 95, 210, 211, 268. 
measures against, 212, 328. 
vitriol-throwing, 114, 196. 
percentage of crime in relation to literacy, 138. 
contribution of various social classes to crime, 158. 
movement of crime, 159, 160, 168, 175, 198, 437 et seq. 
data as to increase of material prosperity, 159, 161, 162, 168, 169. 
Poletti’s comparison of advance of material prosperity with that of 
crime, 168, 169. 
effect of mitigation of punishment, 198, 210, 211. 
criminal courts, 193, note 3. 
cellular prisons, 208, note 1. 


SUBJECT INDEX 459 


France (continued), system of investigation adopted by Louis XII, 356. 
jury system, 360, 361. 
employment of penitentiary prisoners, 394, note 1. 
agricultural colonies for youthful offenders, 395. 
annual collection of fines, 434, note 1. 
penal code in re criminal attempt, 314. 
punishment of unpremeditated homicide, 331. 
“assassinat,” 374. 
statistics of crime, as compared with other European countries, 437 
et seq. 
Fraud, widening conception of, 31, 32. 
crimes of, mentioned, 164, 202, 227. 
presumption of, should exist in respect of transfers made by defend- 
ant after commitment, 427. 
Fraudulent conveyance (“‘insolvabilité volontaire’’), a crime, 41. 
by defendant to be annulled, 427. See also REPARATION. 
Free love. See CHastiry. 
Free trade, in Ferri’s proposals, 182, 186. 
Free will and external motives, 97 
its absence not a reason for lessening punishment, 273. 
what is meant by, 274. 
impossibility of distinguishing between its effect and that of its 
itations, 275. 
French school of criminal law, modern, 56. 
Frisians, 113. 
Froebelian method of education (Marro and Lombroso), 293. 
Frontal diameter, 70, 71, note 3. 
Frontal region in criminals, 67. 
Frontal sinus, its prominence among criminals, 68. 
Frustrated crime, as a species of criminal attempt, 314, 317, 320. 
Fuegian language, 101, note 1. 
Funeral sacrifices, accounted for, 28. 
“Furto aggravato,” 151, note 1. 
“Furto qualificato,” 151, note 1. 
“Furto semplice,” 151, note 1. 
Fustigation, Teutonic punishment of adultery, 37. 


G 


“‘Galére,” infamy attaching to term, 242. ’ 
Galleys, as a means of punishment in France and the Italian States, 
242, note 1. 
Gambling, 42. 
“Garde des sceaux,’’ 138, note 2. 
Gauls, 119. 
Generosity, sentiment of, 20, 22. 
German Empire. See GERMANY. 
Germans, ancient, 119. . 
Germany, contribution of various social classes to crime, 158. 
effect of mitigation of punishment, 201. 
recidivism, 268. ; 
transportation of recidivists suggested, 328. 
statistical data as to crime, 201, 437 et seq. 
penal code in re recidivism, 326. 
mentioned, 322, note 2. 
Glamorganshire, violent crimes in, 120. 
Government, offenses attacking. See PourricaAL Crimes. 


460 SUBJECT INDEX 


Grande Roquette, 83. 

Grandi, case of, 102, 103. 

Gravity of the crime. See PENAL PRoPoRTION. 

Great Britain, transportation in, 248, 254. 
death penalty in, 254. 

See also ENGLAND; ScoTLAND; IRELAND. 

Greece, brigandage in, 127. 

Greenland, 16. 

Grévy, President, his clemency, 53, note 1, 380. 


H 


- Habitual criminals, in Ferri’s classification, 132. 
Habitual offenders in general, their punishment, 225. 
te be denied provisional liberation, 347. 
See also PROFESSIONAL CRIMINALS; Recrptvism; REcIpIvISTS. 
Habitual thieves, etc. See Proprry, CRIMINALS DEFICIENT IN; RE 
CIDIVISTS. 
Hair, peculiarities of, found among criminals, 67, 70. 
Hamlet, 105, 384. 
Hanover, former code of, in re attempt by insufficient means, 312, note 1. 
Harm as an element of the gravity of crime. See PENAL PROPORTION. 
Harvests, abundance or scarcity of, in relation to crime, 160, 161, 163. 
Hereditary transmission of criminal propensities, 92-95, 251, 252. 
Heredity, and crime, 92-95. 
a moral degeneracy, 110. 
difficulty of distinguishing its influence from that of education, 
256 et seq. 
and conscience, 258. 
its influence as counteracting that of education, 259, 260. 
Heresy, 5, 16. 
Heretics, cruelties toward, 26. 
ders of Scotland, brigandage of, 120. 
Hindus, 231, 232. 
Holland, excise law of 1884, 187, 188. 
statistics of homicide, 4 
Homicide from sheer brutality. See Murprr. 
by negligence, 122, 389. 
for revenge, etc. See ENDEMIC Crimes; Homicidal Offenders under 
VIOLENT CRIMINALS. 
influence of liquor upon, 155. 
“assassinat” and ‘‘meurtre” distinguished, 200, note 1. 
statistics of, in various Euro ean countries, xxvi, note 1, 437-439. 
See also MURDERERS; VIOLENT CRIMINALS. 
Homicidal criminals, punishment of. See under VIOLENT CRIMINALS. 
Homicidal mania, 131, 281. 
Honor, sentiment of, considered, 18, 19. 
mentioned, 43, 61, 114, 240. 
Hottentots, 107. 
Hugues, Mme. Clovis, case of, 351. 
Hungary, statistics of homicide i in, 438. 
Hygienic regimen in case of criminal children (Marro and Lombroso), 
293. 


Hypnotism, and crime, 125, 289, 290. 
Hypnotized persons, penal treatment of, 408, 414. 
“Hypothéque,” 389. 

Hysteria, 96, 102, 131, 281. 


SUBJECT INDEX 461 


I 


Idealist school, its notion of punishment, 271. See also ExptaTion. 
Ideation, eats of, coeval with human existence, 100. 
no crime when destroyed, 281. 
Identification, Bertillon system of, 212, note 2. 
Idleness, for Romagnosi a true crime, 180. See also VAGABONDAGE. 
Idoneity. See ADAPTATION. 
Illiteracy in relation to crime, 137-140, 157, 158. 
Illness, voluntary causing of, 40. 
Imbecility. See INsanrry. 
Imitation, as an element of certain crimes, 114. See also ENppMic 


s. 
Immorality, nature’s attitude toward, 238, note 1. 
Impressions, external, difference in effect in cases of insanity and moral 
anomaly, 102-104. 
Imprisonment, its futility in general, 206-209. 
inefficacy of temporary, for fixed term, 268, 330, 424. 
to be retained in exceptional cases, 400. 
for fixed term to be abolished, 406. 
indemnity for unjust, 354, 413. 
pending trial, 345 et seg. See also Provistonat LIBERTY. 
when necessary, 346, 347, 414, 415. 
Improbity. See Prosrry. 
Impulse, irresistible. See IrREsIsTIBLE FoRcE. 
Impulsive criminals, punishment of, 191, 244. 
treatment of victims of chronic alcoholism, 289. 
Impulsive insanity, 280. 
Impulsive sensitivity, 67. 
Ineptitude in criminal attempt, 312 et seg. See also CrimminaL ATTEMPT. 
Indecent assault, 121, 198, 289, 339. 
Indecent liberties with minors, 130, 408. 
Indecent offenses. See InpEcENT AssauuT; INDECENT LIBERTIES; 
Lascivious CRIMINALS; Raps. 
Indefinite sentence. See INDETERMINATE SENTENCE. 
Indemnity for unjust imprisonment, 354, 413, 434. 
Indeterminate sentence, 269, 411, 412, 416. See also ConprTIOoNAL 
LIBERATION. ; 
India, complaint against jury system in, 361. 
Individualism, word has no meaning for criminal science, 302. 
Individuality as a criterion of punishment, 299 et seg. See also ADAPTA- 


TION. 
Industrial establishments, of Cabet, mentioned, 147. 
of Romagnosi, 180. 
in penal treatment of youthful thieves, 301. 
Infancy, and crime, 290-293. See also Aan; CHILDREN; YOUTHFUL 
FFENDERS. 
Infanticide, authorized among certain peoples, 5, 28, 29. 
mentioned, 198, 201. 
Infants, sale of, 5, 26, 28. 
Infirm, maltreatment of, 40. 
“Tngiuria,”’ 24, note 1. 
“Tnjure,”’ 24 and note 1, 122, 227, 250, 289, 389. 
Injustice as an ingredient of legal notion of crime, 55. 
Insane criminals, in author’s classification, 131, 281 et seq. 
in Ferri’s classification, 132, 133. 
intent to commit crime, 280. 
no crime when ideation destroyed, 281. 


462 SUBJECT INDEX 


Insane criminals (continued), treatment of, 282 et seq., 386, 392, 408, 410. 

why included among objects of repression, 283. 
Insanity, and moral anomaly distinguished, 95-105. 

“moral insanity”’ an indefensible term, 97, 102. 

mentioned, 80, 104 

implies disease, 98. 

and common opinion, 98, note 1. 

effect of external impressions in, 102-104. 

bibliography, 131, note 1. 

and moral responsibility 273, 279-287. 

ager ma and the doctrine of extenuating circumstances, 286, 
Insolvency, pretended, 31. 
maak regain against, in enforced reparation, 342, 343, 390, 398, 
Instinct, criminal. See Morar ANOMALY. 
“Tnstruction des procés.” See JupictaL INVESTIGATION. 
Insufficiency of means. See CRIMINAL ATTEMPT. 
Insults, in French and Italian criminal law, 24, note 1. 

mentioned, 24, 122, 227, 250, 289, 389, 407. 
Intellectual development, and neuropathic ‘conditions, 253, note 1. 
Intellectual faculties not creative of instinctive cognitions, 262. 
Intent, in criminal attempt, 309 et seq. 
International penal er proposed, outlined, 405-416. 

mentioned, xxxv, 131. 
ghee Ne in an oversea colony, in French criminal law, 59, note 1, 212, 


as a means of elimination, 225, 301, 410. 
to what offenders applicable, 225, 301, 385, 387, 397, 398, 411, 412. 
mentioned, 331, 405. 
Intimidation, as a reflex effect of punishment, 239-251. 
not a criterion of punishment, 245 et seq. 
present in both absolute and relative elimination, 249, 250. 
of insane asylum, 285. 
Investigation, system of. See PRosECUTION AND TRIAL. 
Treland, statistics of crime in, 437 et seq. 
Irish and Scottish children, case suggested by Darwin, 258, 259. 
Irresistible force, principle of, in existing law, 276-279, 336. 
Italy, percentage of crime in ‘relation to literacy, 138. 
contribution of various social classes to crime, 150-154, 156, 157. 
proportions of proprietors and proletarians in population, 152, 157, 
, note 1. 
movement of crime, 169, 200, 201, 381. 
data as to increase in material prosperity, 169. 
Poletti’s comparison of advance of material prosperity with that of 
crime, 169, 170. 
criminal courts, 193, note 3. 
experience in the mitigation of punishment, 200 et seg. 
bad effect of cessation of death penalty, 201, 381. 
pecuniary damage inflicted by professional criminals, 204. 
cellular prisons, 208, note 1. 
recidivism, 210, 268. 
penitentiaries, conduct of inmates, 210. 
recidivists in, 210. 
escapes from, 377, note 1. 
data as to length ‘of sentences of inmates, 377, note 3. 
employment of inmates, 394, note 1. 
savings of inmates, 432. 


SUBJECT INDEX 463 


Italy (continued), penal code (of 1889) in re semi-responsibility, 275. 
punishment of minors, 293, note 1. 
recidivism, 326. 
ae ; mentioned, , note 2, 322, note2. 
Saar of crime, as compared with other European countries, 
et seq. 


J 


Japan, bathing customs of women, 12. 

Jack the Ripper, 79. 

Jaws, conformation, in criminals, 70, 71. 

' Jephthah, 28. 

Judge, less open to corruption than jurors, 359, 360. 

' criminal, his proper qualifications, 364, 365, 415. 

- Judicial investigation (‘‘instruction des procés’’), 344, 345. 
contention for publicity considered, 344. 
secrecy of, generally essential, 344, 345, 414. 
duty of judge of “instruction,” 344, note 1. 
mentioned, 193, 341. 

“‘Juge de paix,” 193, note 3. 

“Jukes,” the, 92. 

Juridical school, its theories of crime, xxiv, 54-58. 
its philosophy of crime and punishment, 271. 
temporary imprisonment its type of punishment, 330. 
mentioned, xxix, 198, and apters m1, m1, Part III (270-337) 


passim. 
Juristic school. See JurmicaL ScHoou. 
Jurors, professional in Italy, 157, note 1, 360. 
and the defense of irresistible impulse, 228, 279. 
Jury, 355-364. 
distrusted by Government, 193, 361. 
should be abolished, 317, 356 et seq., 383, 415. 
form of questions propounded to, in France, 333, note 1. 
trial by, a gamble, 356. 
why institution is workable in England, 357. 
differences between English and Continental, 357. 
experiment with, in Spain, 359. 
its ineffectiveness in France, 360, 361. 
complaint of, in India, 361. 
arguments in its favor considered, 362-364. 
retention in Italy explained by composition of Chamber of Depu- 
ties, 383, note 1. 
Justice, an elementary altruistic sentiment, 19. 
sentiment of, considered, 30, 31 
mentioned, 240. 
elementary probity the degree generally prevalent, 31. 
defects of, as causes of crime (Romagnosi), 180. 
theory of absolute, in punishing, 271, 272, 297. 
inevitable inequalities of, 306. 


K 
Kamchadales, 6. 
Keeper of the Seals (in France), 138. 
Kidnapping, 40, 386. 
Kleptomania, 126, 131, 281, 391. é 
Knitting, an occupation of Italian convicts, 207. 
“Korperverletzungen, gefihrliche,” 441. 


464 SUBJECT INDEX 


L 
“La Terre,” Zola’s, 155. 
Labor certificates, 148. 
Labor in relation to criminal’s reformation, 262, 264. 
compulsory. See Computsory LaABor; REPARATION. 
Larceny. See THEFT. 
Lascivious criminals (in author’s classification), 130, 131, 134, 406. 
punishment of, 399, 411. 
what offenses to be attributed to, 408. 
“L’Assommoir,” Zola’s, 155. 
Law, and public opinion, 242, 243, 331. 
Laws, Influence of the, 178-213. 
La fe sae 190-213. See also PUNISHMENT. 
obediences, as distinguished from natural crime, 39, 40, 45, 132, 
217, 400, 401. 
code of, proposed, 59, 406. 
Legal Notion of Crime, The, 54-60. 
its objective character, 54, 55. 
lack of adequate definition, 55 et seq. 
Legislation affecting the causes of crime, 178-190. 
views of Quételet and Lacassagne, 178, 179. 
Romagnosi on, 180, 181. 
Ferri on, 181 et seq. 
its true limits, 184, 189, 190. 
direct penal, 190-213. See also PUNISHMENT. 
Lemaire, 92. 
“Les Misérables,” 145. 
Lex Cornelia in re attempt, 318. 
“Liberté provisoire,”’ 345, note 2. 
Lien (judicial mortgage), to be awarded on defendant’s real property in 
cases of enforced reparation, 389, 426. 
Life-imprisonment, as a means of elimination, 221. 
its intimidatory effect, 249. 
and absolute justice, 272. 
mentioned, 331 
Literacy in relation to crime. See ILLITERACY. 
Local cals oe abo. misappropriation of, 41. 


“Local atenat (Filangieri), 249. 
Local offenses menacing public peace, 39, 40. 
in general, 42. 
Lunatic, the, and common opinion, 98, note 1. See also INSANE CrIMI- 
NALS; INSANITY. 
Lycurgus, 29. 
Lydia, religious prostitution of, 12. 
Lynching, 49. 
“T/union internationale de droit pénal, xxix. 
Lypemania, 281, 286. 


M 


Mafia, responsible for certain offenses, 151. 
jurors obedient to, in pay 359. 

“Magic Skin, The,” of Balzac, 38 

Malays, 71, 108. 

Malicious mischief, 41, 227. 

Malthusianism in Ferri’s proposals, 183, 189. 

“Mandat d’arrét,” 341 and note 1, 347. 


SUBJECT INDEX 465 


“Mandat d’amener,”’ 341, note 1, 427. 
de comparution,”’ 341, note 1. 
de dépét, 341, note 1. 
‘*Mandat inexécuté, ” 322, note 2, 409. 
Mandibles, undue size of, in certain criminals, 71. 
Mania, 280, 281. 
homicidal, 131, 281. 
See also INSANE CRIMINALS; INSANITY. 
Manu, laws of, 59. 
Maoris, 29, 101, 363. 
Marooning, as a means of elimination, 387, 410. 
to whom applicable, 387, 388, 392, 410, 411. 
where effected, 387, 392, 393, 411. 
Marriage, its public consummation among certain savages, 12. 
incestuous, of Egyptian rulers, 12, 13. 
abstention from, a condition of State-assistance (Romagnosi), 181. 
as tending to modify character, 385, 411. 
Massagetae, 6 
Material circumstances (‘‘circonstances matérielles’’), 321, 322, 409. 
Materialism, positivists not open to charge of, xxxii. 
Mattia, (De) case of, 206, note 1. 
9 far 40, 229, 386, 407. 
Melancholia, 102, 281. See also LyPpEMANIA. 
“‘Menaces 4 main armée,” 335. 
Mendicancy, 146, 165. 
“Merit” of human actions, what is signified by, 303. 
“Meurtre,” defined, 200, note 1. 
Mexico, al of prisoner’s earning paid over to injured person, 432, 
note 


Microcephaly in criminals, 69. 
“‘Ministére public,” 355, note 1. 
Misdea, case of, 381, 382. 
Mitigation of punishment. See PUNISHMENT. 
Mobility of countenance, a mark of the thief, 71. 
Mobs, criminal. See Crimmat Moss. 
Modesty, sentiment of, 12, 34, 35. See also CHastity. 
Molecular formation, 79. 
Monomania, in relation to principle of moral responsibility, 286. 
differential treatment proper for victims of, 408. 
Montenegro, the vendetta in, 49 
Montgomeryshire, violent crimes in, 120. 
Moors, cruelties toward, 26, 27. pees 
Moral anomaly of criminals, wrongly denied by some physiologists, 
XXxi. 
may have a physical basis, xxxi, 79, 104. : ; 
consists in default of that part of the moral sense which evolution 
has rendered almost universal, 45. ‘ 
two types of: cruelty and improbity, 33 et seq., 40 et seq., 62. 
loses for man sympathy of his neighbors, 52. 
data as to, 79-92. 
extreme cases, 79-81. 
intermediate cases, 81, 82. 
description of criminal sentiments, 82-92. 
its hereditary transmission, 92-95. 
and pathologic anomaly distinguished, 95-105. 
a as to its source, 105-111. 
of certain thieves as defined by Benedikt, 128. 
See also Moraut SENSE; NATURAL CRIME. 


466 SUBJECT INDEX 


Moral character. See CHARACTER. 
Moral degeneracy. See DEGENERACY. 
Moral education, should be aim of religious teachings, 141. 
operative only upon childhood and early youth, 141, 256 et seq. 
its lack not confined to any social class, 153. 
Moral expiation. See ExpiaTion. 
Moral insanity. See INsanrry. 
Moral insensi ility. See Morat ANOMALY. 
Moral instincts, impossibility of artificially creating, 263-266. See also 
CHARACTER. 
Moral motive, the, arising from repression, 240-244. 
Moral neurasthenia, 128, 129. 
Moral responsibility, 273-293. 
a postulate of the classical school, 272, 273. 
its fallacies, xxv, 273-276, 293. 
ekg ba to reconcile onintaide with that of adaptation, 
effect in neutralizing econ punishments, 331, 336, 337. 
principle to be discarded, 307, 408. 
Moral sense, its origin and evolution, 6-9, 11, 25, 155, 156. 
analysis in general, 10-15. 
analysis of its constituent instincts, 15-33. 
education cannot create, at least in adults, 261 ef seg. 
absence or default of. See Morat ANOMALY. 
See also BENEVOLENCE; Justice; Piry; Propiry; Naturat CRIs. 
“Morbus,” 99. 
Morphologic anomalies, 110. 
Moscow, Tolstoi’s references to poor in, 145, 146, 149. 
Moses, laws of, 59 
Motive as index of anomaly in certain Murderers, 373, 374. 
Murder, from motives of brutality, 6, 29, 79, 80, 373, 374. See also 
MURDERERS. 
for revenge, etc. See EnpemMic Crimes. 
increase of, consequent upon mitigation of punishment, 198, 201, 
380, 381. 
See also Homiciwr. 
Murderer, physical characteristics (Lombroso), 70. 
a physiognomic type, 72. 
Murderers (in author’s classification), 111, 112, 131, 134, 406, 407. 
punishment of, 222, 224, 236, 237, 244, 307, 372-382, 410. 
“Mutilations,” 40, 229, "407. 


N 
Namas, 107. 
Naples, superstition as to supposed power of prophecy of priests and 
nuns, 114 


practice of inflicting razor-slashes, 114, 193-195, 351, 352. 
effect of removing restrictions upon retailing of ‘liquors, 188. 
reckless use of revolver, 195, 196. 
woundings, and provisional liberty, 349. 
influence of Camorra upon jurors, 359. 
Natural Crime, The, 3-53, 58-60, 218. 
its rationale, 33-40. 
its delimitation, 40-45. 
criticisms of theory, 42-45, 45-53. 
mentioned, xxxv, 121, 134, 217, 339. 
Natural gifts in relation to praise or blame, 304. 


SUBJECT INDEX 467 


Nature, her attitude toward immorality, 238, note 1. 
inequalities in, 306. 
Nassau, former code of, in re attempt by insufficient means, 312, note 1. 
“Navaja,” 441. 
Necessaries, lack of, 148, 160, note 1. 
Necrosis, 92. 
Needs, relativity to desires, 146, 147. 
Negligence, homicide due to. See Homicipe. 
Negro, mentioned, 75, 101. 
Negro children, case of, as showing ineffectiveness of education, 266. 
“Ne peccetur”’ as a principle of punishment, 235-238. 
Neurasthenia, moral, 128, 129, 392. 
physical, 128. 
Neuropathic criminals, their punishment, 244. See also ImpuLstve 
CRIMINALS 


and natural selection, 253. 
Neuropathic re ai as a consequence of intellectual development, 
, note 2. 
Neuropathic manifestations, 106. 
Neurosis, 98, 102, 116, 121, 131, 281. 
New Caledonia, aborigines of, 6. 
transportation to, 328, 392. 
Nihilists, 112. 
“‘Non-lieu, ordonnance de,” 204, note 2. 
Norway, statistics of homicide in, 438. 
Nose, peculiarities of form among criminals, 70-72. 
“Nullité de la procédure,” 416. 


O 


Objective circumstances may be useful in determining perversity, 300. 
re period of, proposed in various cases, 385, 387, 388, 399, 


Occasion, in relation to criminal acts, 96, 114, note 2, 133. See also 
CasuaL OFFENDER. 
Occasional criminals, in Ferri’s classification, 132, 133. 
Occipital region in criminals, 67. 
Old ne pec 87. 
Oratory of counsel, its effect upon jury, 358. 
a natural product of system of accusation, 359, noie 1. 
Oxycephaly in criminals, 69, 71. 


P 
Pallor of thieves, 72. 
Papavoine, 79. 
Paralysis, progressive, 102, 281. 
Pardon, of life-convicts in Sweden, 209, 210. A 
right to grant, should exist only as a power to review, 369, 371. 
ect of systematic, in Belgium, 379. 
abolition recommended, 406 
See also CLEMENCY, EXECUTIVE. _ ; 
Parents, age of, as influencing criminality of children, 93. 
Parricide, from filial duty, 6, 28. 
mentioned, 201, 380. 
Paris, composition of Revolutionary mobs, 123, 124. 
“Parte civile,’”’ 340, note 1. 
“Partie civile,’”’ 340, note 1. 
Passion, crimes of, 115 et seq. 


468 SUBJECT INDEX 


Passionate criminals in Ferri’s classification, 132, 133. 
Pastor, value of his teachings in Protestant countries, 142, 
Paternal authority, disobedience to, 36. 
Pathologic anomaly and moral anomaly distinguished, 95-105. 
Patriotism, sentiment of, considered, 15, 16. 
mentioned, 43, 61. 
Peasantry of France, their economic condition, 159. 
Peasants described by Zola, their characteristics, 155. 
“Peines afflictives et infamantes,”’ 59, note 1. 
correctionnelles,” 59, note 1. 
de police,” 59, note 1. 
Peltzer, the brothers, agitation against their pardon, 53, note 1. 
Penal code, Italian (of 1889) in re semi-responsibility, 275. 
punishment of minors, 293, note 1. 
recidivism, 326. 
mentioned, 200, note 2, 322, note 2. 
former codes of Hanover, Brunswick, Nassau, and Baden in re 
attempt by insufficient means, 312, note 1. 

French, in re attempt, 314. 
punishment of unpremeditated homicide, 331. 
“‘assassinat,’’ 374. 

German, in re recidivism, 326. 
mentioned, 322, note 2. 

(former) Sardinian, in re “‘mandat inexécuté,”’ 322, note 2. 
punishment of unpremeditated homicide, 331. 
‘‘assassinat,’’ 374, note 1. 

proposed international, outlined, 405-416. 
mentioned, xxxv, 131. 

Penal colony. See INTERNMENT; “‘ RELEGATION.” 
Penal laws, influence upon criminality, 190-213. See also PUNISHMENT. 
Penal proportion, a postulate of the classical school, 273, 294. 

gravity of the crime, 294-296. 

gravity of the punishment, 296-299. 

penal scale, 296, 297. 

theory of proportioning punishment] to degree of criminal impulse 

(Romagnosi and Feuerbach), 297, 298. 
its neutralization of punishment, 336, 337. 
no room for the principle, 299 e¢ seg., 408. 
Penal servitude in French criminal law, 59, note 1, 212, note 1, 328. 
Penal Tribunals, in Italy, 193, note 3. 
Penitentiaries of Italy. See Iraty. 
Penitentiary imprisonment in France, 59, note 1. 
Perjury, 41, 408. 
Person, crimes against, as influenced by temperature, 117, 118. 
question of influence of poverty, 153 et seq. 
Personal circumstances (“‘cireonstances personnelles”), 321, 322, 409. 
Personal identity, as basis of responsibility (Tarde), 281, note 1. 
Peru, funeral sacrifices in, 28. 
Perversion, sexual, 35, 42, 121. See also Saptsm. 
Petroff (in Dostoieffsky’s ‘House of the Dead’’), 86. 
Phalansteries of Fourier, 147 
Philanthropy 20, 22. 
Phrenology, Gall’s theory, 66. 
Phrenosis, 116, 281. 
Phthisis, 92. 
Physical anomaly, 67, 68-79. 
evidentiary data, 68-72. 
physiognomic types, 72-79. 


SUBJECT INDEX 469 


lara degenerac naif See DEGENERACY. 

Physical insensibility of certain endemic criminals, 115. See also 
VULNERABILITY. 

Physical neurasthenia. See NEURASTHENIA. 

Physiognomic types of criminals, 72-79. 

Physiognomy of thieves, 71, 72. 

Physiologic en ee of moral anomaly, question of, mentioned, 

Pillage oe wrecks, 5, 26. 


Pity, sentiment of, 23-30. 

its universality, 22-25, 29. 

apparently contradictory facts explained, 26-29. 
offenses violating, 23, 24, 
offenses not violating, 23, 41, 42. 
See also MURDERERS; VIOLENT CRIMINALS; NaTURAL CRIME. 

“Plagiat,’’ 41. 
Plagiocephaly in criminals, 69. 
Plurality of offenses, as distinguished from recidivism, 323-325, 409. 
Police, — demoralization by practice of provisional liberation, 352, 


Police offenses (“‘contraventions’’) in French penal law, 59, note 1. 
code of, proposed, 406. 
Police punishments in French law, 59, note 1. 
Political crimes, 37-39, 42, 185, 217, 400, 401. 
wary tty rights, deprivation of, recommended for certain offenders, 398, 
Basie ¥¥:; 
Poor of Moscow, Tolstoi’s references to, 145, 146, 149. 
Population of France in 1826 and 1884, 198. 
of Italy by census of 1901, 152, 157, 160, note 1. 
Positive school of criminal science mentioned, xxxii, 47, 287. 
Poverty, its disappearance would not mean cessation of crime, 144 
et seq. 
effect as to crimes against property, 148-153. 
as to crime in general, 153 e¢ seq., 164, 165. 
Praise or blame accorded to actions without references to causality of 
determining Ego, 304, 305 
Prehistoric man, 10, 105-108. 
Prehuman atavism. See ATAVISM. 
Premeditation, and drunkenness, 289. 
not a certain criterion of anomaly, 374-376. 
always denotes a cruel nature, 384. 
Preparation, acts of, in criminal attempt, 314, 318-320, 408, 409. 
Prescription of criminal actions, 366, 367. 
of punishments, 367, 368. 
what principle should govern in lieu of, 367, 368, 413. 
“Pretore,” 193, note 3. 
Prevention, general and special, 298. 
special, 308. 
See also PUNISHMENT; REPRESSION. 
Prevision, lack of, a criminal characteristic, 81, 100, 245. 
Prévost, case of, 82 
Priapus, 12, : 
Prisons, expense of, in European countries, xxix, note 1, 424, 
cellular in France and It taly, 208, note 1. 
See also ITALY. 


470 SUBJECT INDEX 


Private action. See Crimmnaut AcTION. 
Probity, sentiment of, 31-33, 147. 
offenses violating, 40, 41. 
offenses not violating, 41-43. 
Criminals deficient in (in author’s classification), 125-130, 134, 223, 


their punishment, 391-398, 400, 411-413. 
(a) instinctive and habitual offenders, 391-394, 411. 
(b) non-habitual offenders, 394-398, 412, 413. 
Procedure, Criminal, Defects of the Existing, 338-371. 
Procedure, system in proposed international penal code, 414-416. 
Professional criminals, 129, 203, 204, 423. 
their punishment, 192. See also PUNISHMENT. 
See also RectprvismM; Recipivists. 
Professions, their contribution to crime, 156—158. 
Prognathism in criminals, 67, 68, 76, 100, 107. 
Progress. See CrvILIzATION; PROSPERITY. 
Prohibition of sale of intoxicants, 187. 
Proletariat, definition, 145. 
proportion of crimes ascribable to, in Italy, 150-152. 
proportion in population of Italy, 152, 160, note 1. 
Prolificacy of criminals, 253, 254. 
Property, crimes against, as influenced by temperature, 118. 
by economic fluctuations, 161-163. 
wilful injury to. See Maticious Miscarer. 
Prophecy, superstition as to power of, among priests and nuns, 114, 
Proportionality between crime and punishment. See PENAL PRoPporRTION. 
Proprietors, proportion of crimes ascribable to, in Italy, 150-152, 156. 
proportion in population of Italy, 152, 160, note 1. 
Prosecution and trial, 344, 345, 355-365, 414-416. 
jury should be abolished, 317, 356 et seg., 383, 415. 
initiation of the criminal action, 339, 340, 414. 
judicial investigation, its secrecy generally essential, 344, 345, 414. 
system of investigation superior to that of accusation, 355, 356. 
criminal judges should form a separate corps, 364, 365, 415. 
manner of trial, 415, 416. 
See also PROVISIONAL LIBERTY. 
Prosperity, ba of, in France, 161, 162, 168, 169. 
in Italy, 169. 
Poletti’s theory of direct proportion between crime and, 165-177. 
stated, 166,167. 
considered, 167-176. 
summary of conclusions, 176, 177. 
Prostitution, in some semi-civilized countries, 5. 
religious, 12. 
enticement to, 24. 
Provisional liberty, 193, 345-354. 
requirements as to bail in France and Italy, 345, note 2. 
arguments against preliminary detention answered, 345, 346. © 
cases to which it should be limited, 346, 347, 354, 415. 
evils of existing system in Latin countries, 347, 348-354. 
remedy for unjust detention. See INDEMNITY. 
Provocation in cases of homicide, 335, 336, 375. 
ia, observations in, as to relation between crime and price of bread- 
stuffs, 161. 
effect of failure to carry out death sentences, 380. 
Psychic anomaly. See Morat ANOMALY. 
Psychic individuality, loss of, 281. 


SUBJECT INDEX 471 


Psychologic character, 79, note 1. See also CHARACTER. 
Psychologic coaction, ‘theory of, 245, 247. 
Public action. See CrmmNnau AcTION. 
Public Ministry, 355, 414, 4165, rei 426. 
Public decorum, offense to, 35, 42 
Public opinion, and average moral sentiment, 51. 
and the law, 242, 243, 
Punishment, its object according to bade er school, xxiv. 
mitigation, evil effects of, in general, 1 
exemplified i in various countries, 197-203. 
productive of recidivism, 209-211. 
criteria of utility, 191-197. 
f case of extreme criminals bac aha 191. 
impulsive criminals, 191, 192. 
professional cal accal 192. 
endemic criminals, 192-197. 
reducible to two modes; elimination and reparation, 217-229, 410. 
See also ELIMINATION; REPARATION. 
excess in, 223, 224, 248. 
nope ae and reparation in relation to various conceptions of, 
its effect upon moral sense, 240-244 
philosophy of, according to juridical school, 271. 
according to idealist school, 271. 
true nature and purpose, 298 et seq., 406, 408. 
to be measured by possibility of offenders’ adaptation, 299 et seq. 
See also ADAPTATION 
of Murderers, 222, 224, 236, 237, 244, 307, 372-382, 410. 
of other criminals, 224-229. 
of Violent criminals, 382-391, 410-413. 
of Criminals deficient in probity, 391-398, 410-413. 
of Lascivious criminals, 399, 411. 
cases where imprisonment should be retained, 399-401. 
See also PENAL PRoporTION; PRESCRIPTION; VIOLENT CRIMINALS; 
Prospity, CRIMINALS DEFICIENT IN. 
Punishment, The Rational System of, 372-401. 
Punishments of existing system, 330-337. 
frequently evaded, 204-206. 
almost never a plied, 331-336. 
neutralization i doctrines of moral responsibility and penal pro- 
portion, 331, 336, 337. 
nal scale. See PENAL PROPORTION. 
Pupils of the be inequality in size of, among criminals, 67. 
Pyromania, 131, 281. 


Q 


Quantitative criminality of France, increase from 1841 to 1878, 169. 
Quantitative criterion of crime, search for, useless, 299. 
Quia peccatum,”’ as a principle of punishment, 235 e¢ seq. 


R 


Rape, 71, 163, 229, 290, 296, 339. 

Rapists 71. 

Razor slashés, practice of inflicting, 114, 193-195, 351, 352. 
Reaction against crime, elimination as logical form of, 219 et seq. 
Reading and writing. See ILLITERACY. 


472 SUBJECT INDEX 


Rebellion, acts of, 132, 401. See also PotrticaL Crimes. 
Recidivation in a different species of crime, 95, 163, 326, 409. 
Recidivism, an effect of heredity, 94, 95. 
question of general and special, '95, 163, 326, 409. 
as an effect of mitigation of unishment, 209 et seq. 
of pardoned life-convicts in Sridedi 209, 210. 
increase in France, prior to 1885, 210, il. 
measures against, in France, 212, 328. 
of vagabonds in Tudor England, "247, 325, note 2. 
statistics of, a refutation of correctionalist theory, 267, 268. 
to be distinguished from plurality of offenses, 323, 324, 
effect of lapse of time since former conviction, 327, 328. 
proposed measures against in Germany, 328. 
Recidivists, in Italian penitentiaries, 1900, 210. 
in Belgian penitentiaries, 1851-1860, 311. 
punishment of, in Middle Ages, 325, note 2. 
should be ‘distinctive, 325-327. 
in various cases, 392, 397, 398, 409, 410. 
should not be granted provisional liberation, 347. 
“Réclusion,”’ 59, note 1. 
Record-sheets of criminals. See “Casters Juprcramres.” 
Reformation of criminals, Despine’s proposals for, 262, 263. See also 
CoRRECTIONALIST ScHOOL. 
Regressive moral characteristics, 109, 111. 
Regressive physical anomalies, 68, 69, 76, 77. 
Reiteration. See PLURALITY OF OFFENSES. 
“Relégation,” 59, note 1, 212, note 1. 
Religion, sentiment of, 16, 43, 61. 
offenses against, 42. 
as a social influence upon criminality, 140-142. 
Remorse, true criminal incapable of, 82. 
expiation founded only on, 232. 
Remote attempt. See “Conatus Remorus”; CrrminaL ATTEMPT. 
Reparation, enforced, as a form of repression, 226-228, 239, 244, 389, 
390, 410, 419-435. 
Spencer’s theory of restitution and liberation, 228, 229. 
its intimidatory effect, 250, 251. 
means of, 227, 228, 251, 389, 390, 412, 413, 426 et seq. 
in what cases proper, 226, 389, 396, 397, 412, 413, 423, 425. 
author’s practice while a member of Italian Ministry of Justice, 
See also CoMPENSATION Funp; Computsory Lasor; CONDITIONAL 
LIBERATION; DaMAGEes, ENFORCEMENT OF JUDGMENT FOR. 
Repentance, in theory of expiation, 232. 
REPRESSION, 217-401. 
Repression, its present ineffectiveness, XXVil, XxViii. 
elimination and reparation, the two forms of, 217-229. 
motives of conduct arising from, 240 et seq. 
See also PUNISHMENT 
ali moral character as basis of, 281, note 1. See also Moran 
ENSE. 
moral. See Morat RESPONSIBILITY. 
Restitution and liberation, Spencer’s theory of, 228, 229. 
Retrogressive selection as an explanation of moral anomaly, 110. 
Review of judgment of conviction, by Chief Executive, 369, 371, 
by higher court, 416. 
“Révoltés, ” 68, 89, 127, 131, 401. 
Revolutions, French, of 1793 and 1871, mobs in, 123, 124. 


SUBJECT INDEX 473 


Revolver, reckless use of, in Naples, 195, 196. 
Richard Coeur de Lion, cannibal feast of, 26. 
Robbery, 41, 151, 164, 229. 

Rodriquez, Castro, case of, 82. 

Romagna, jurors actuated by hatred of Government in, 359. 
Roman law, in re distinction between “vitium” and “morbus,” 99. 
capital punishment, 220 and note 1. , 

attempt, 310, 318, 319. 

presumption against slavery, 332-334. 

provisional release, 347. 

‘addictio,” 428. 
Rome, ancient, and the establishment of Christianity, 11. 

transfer of wives, 12. 
ae -sgranteany 16. ye 

me, modern, prejudices of lower classes, 113. See also " 

Rudeness of feeling, 14, 121, 155, 389. y ee 
Russia, statistics of homicide in, xxvi, note 1, 438, 439. 
Rzhanoff tenement in Moscow, 145, 149. 


s 

Sacrifices, human, 28. 

Sacrilege, 5, 16. 

Sadism, 131, 133, 399. 

Sandwich Islands, 12. 

Saracens, 26, note 1, 27. 

Sardi, 6. 

Sardinian penal code, in re “‘mandat inexécuté,”’ 322, note 2. 
punishment of unpremeditated homicide, 331. 
“‘assassinat,”’ 374, note 1. 

“Satyres.” See Lascivious CrIMINALs. 

Savings of convicts, and conditional liberation, 432. 
in Italy, 432. 
in Belgium, 432, note 1. 

Scale of punishments. See PeEnaL PROPORTION. 

Scandinavians, prehistoric, 6. 

Scaphocephaly in criminals, 69, 71. 

School, the, in relation to crime, 137-140. 

Scotland, vitriol-throwing in, 114, 196. 

statute in relation to, 196, note 1. 
annual collection of fines in, 434, note 1. 
statistics of crime in, 437 et seq. 

Scottish and Irish children, case suggested by Darwin, 258, 259. 

Scrofula, in criminals, 92, 106. 

Seasons, effect of their vicissitude upon crime, 162, 163. 

Secrets, violation of professional, in French and Italian law, 41, note 2. 
mentioned, 41. 

Sedition. See Porrrican Crimes. 

Seduction, 24, 40, 122, 389. 

ye at ag See Exvim1naTion; INTERNMENT. 

Selection, as an effect of elimination, 251-255. 
operated by the death penalty, 252, 254. 
as an effect of the insane asylum, 285. 
retrogressive, probable explanation of moral anomaly, 110. 
natural, by elimination, operative only upon criminals of a patho- 

logic character, 253. 

“Sélection 4 rebours,” 110. 

Self-esteem. See VANITY. 


474 SUBJECT INDEX 


Semi-insanity, as an extenuating circumstance, 286. 
Semi-responsibility in Italian penal code, 275. 
Semites, ancient, 231. 
Senile lubricity, 130, 399. 
Sensibility, obtuseness of, 92. See also VULNERABILITY. 
Sentiments, moral, necessity of analyzing to obtain notion of natural 
crime, 6-10. 
non-elementary distinguished, 15-19. 
altruistic, 1 
of criminals, 82 et seq. 
See also Morat Sense; Piry; Prosrry; Moran ANOMALY; AFFEC- 
TIVE SENTIMENTS. 
Septembrists, 124. 
Servant, theft by. See “Vou DomeEstiquz.” 
Servia, brigandage, i in 127. 
Severity of punishment. See PunisHMENt, Criteria of Utility. 
““Sévices,”’ 40, 229, 374, 407. 
“Sezione d’accusa,” 193, note 2, 204, note 2. 
Siberia, transportation to, 393. 
Siberian convicts, described by Dostoieffsky, 78, 83 et seq. 
Sicily, observations in, as to relation between theft and price of bread- 
stuffs, 161. 
influence of Mafia upon jurors, 359. 
Simple theft, 202, 227. 
in French and Italian law, 151, note 1. 
“Simulations,”’ 32. 
Sinus, frontal. See FRONTAL SINUS. 
Sirotkin (in Dostoieffsky’s “‘ House of the Dead” ), 78. 
Skulls, of criminals, 67 et seg., 105 
Canstadt and Cro-Magnon, 107. 
Slavery, presumption against, in Roman law, 332-334. 
mentioned, 11, 26. 
Slavs, prehistoric, 6. 
Smuggling, not violative of elementary altruistic instincts, 33, 42. 
mentioned, 184. 
Social classes, and crime, 142-165. 
Social Influences, 135-177. 
Socialists, their arguments as to causes of crime, 142-165. 
Sociologic notion of crime, need of, 3-5. 
means of attaining, 5-10. 
See also NATURAL 
Soldiers examined by Ferri, ‘69. 
Somatic substratum of moral anomaly, possibility of, xxxi, 79, 104. 
Songs, Sicilian criminal, 206. 
Spain, percentage of crime in relation to literacy, 138. 
experiment with jury trial, 359. 
statistics of crime, 437 et seq. 
2 ecupeyen their cruelty to natives of New World, 26, 27. 
ange fe nudity . young women in gymnasia, 12. 
ultery, 12. 
exposure of weak and deformed children, 29. 
mentioned, 16. 
Special recidivism, 95, 163, 326, 409. 
Specialties, criminal, may be determined by school education, 139. 
by economic causes, 164. 
Specialization of crime as an effect of civilization, 177. 
Spells, casting of, 113. 
Spirituality, a product of moral qualities, 139. 


SUBJECT INDEX 475 


Spoliation of een, 41. 

Starodoub, 87-8 

State-provided a Romagnosi’s plan for, 180, 181. 
State-workmen, companies of. See Computsory Lasor. 
Statistics, comparative, of crime, ‘. 

Statute of Vagabonds, English, 247. 

Statute of limitations. See Prescrrprion. 

Stolen goods, receivers of, 407. See also Tureves. 
Stoning, Israelitish unishment of adultery, 37. 

Stress, economic. Se e Economic Stress 

pain ag woundings, 119, 121, 122, 188, 198, 227, 339, 346, 367, 


statistics of, in various eh ne countries, 437, 439-441. 
Styria, violent crimes in, 119 
Submicrocephaly in criminals, 67, 69, 71. 
Subsistence, defects in as causes of crime (Romagnosi), 180. 
Substitutes for punishment (Ferri), 182. 
Substitution of children, 41, 
Suffering, as a means of purification i in theory of expiation, 230. 
its infliction inevitable in repression, 234. 
in relation to correctionalist theory, 256. 
physical, not essential in punishment, 406. 
Suggestion, hypnotic. See Hypnotism. 
mob, question of, 122-125. 
Suppression of civil status (“suppression d’état civil’), 41 and note 3, 


Supra-orbital ridges, prominence of, in certain criminals, 68, 70, 76. 
Sumatra, Battas of, 6 
Superstition, its relation to certain apparent violations of pity, 28. 
and d endemic crimes, 11 
Sweden, pardon of life-convicts i in, 209, 210. 
King Oscar on pardoning power, 370. 
statistics of homicide, 488. 
Swindlers, punishment of. See Prosity, CRIMINALS DEFICIENT IN, 
Swindling, 205, 296. See also Fatsz PRETENSES. — 
Sympathy, Darwin’s theory of instinctive, 7, 8. 
animals, a late moral acquisition, 20, 27, 44. 
Pa i roducing modifications of conduct (Spencer), 21, 22. 
0 BENEVOLENCE; Pity. 


- 
Tahiti, 6, 
Talion, ee Se the, 230. 
Tariff legislation in Ferri’s als, 182, 184, 186. 


Taverns, restriction of, in fo and, 187, 188. 
increase in Italy, 188 

See also Auconoxic Liquors. 

Teaching, pedagogic, without influence on moral character, 140. See 
also EpucaTION; CoRRECTIONALIST THEORY. 

Teeth of murderers, 70. 
““Tell-tale Heart,” Poe’s, 103. 
“Temibilita,” 303. 
Temperament of criminals, 79. 
Temperance societies in Ferri’s proposals, 189. 
Temperature, its influence on crime, 117 et seg., 162, 163. 
“Tentative,” 308, 314, 318, 320. 
Teratologic cranial deformations in criminals, 69. 


476 SUBJECT INDEX 


Theft, causes of propensity to, 127. 
French and Italian law of, 151, note 1. 
statistics of, in various European countries, 437, 441, 442. 
mentioned, 93, 149, 151, 198, 202, 205, 332. 
Thief, a physiognomic type, 72 
Thieves, cranial anomalies in, 71. 
physiognomy of, 71, 72. 
and moral neurasthenia, 128, 129. 
professional, their punishment, 225. See also PROFESSIONAL 
CRIMINALS. 
as distinguished from ‘falsifiers,’”’ 407. 
punishment of various classes, 227, 391, 392, 394-398, 411, 412, 413. 
See also Prospiry, CRIMINALS DEFICIENT IN. 
Threats, 121, 335, 339, 407. 
Tierra del Fuego, 101, note 1. 
Tiflis, judicial district of, 439. 
Todas, 17. 
Tonkinese, cruelties of European armies toward, 27. 
Torture, physical, deliberate infliction of, a natural crime, 40. 
in French penal code, 374. 
as characterizing certain murderers, 374. 
not today countenanced in punishing, 233. 
Tottiyars, 17. 
Transformation of crime from one kind to another, 160 et seg. 
of species, mentioned, 111. 
Transportation, as a means of elimination, 220, 221. 
by British government, 248. 
its intimidatory effect, 249. 
See also INTERNMENT; MAROONING. 
“Transportation,” 212, note 1. 
“Travaux forcés,” 59, note 1, 212, note 1. 
Treason, a true crime in a state of war, 38. 
Trial procedure. See PRosECUTION AND TRIAL. 
“Tribunal correctionnel,” 193, note 3. 
Trococephaly in criminals, 71. 
Trust, criminal breach of. See BrreacH or TRusT. 
Tufano, case of, 82. 
, professional and social of Tarde, 75, 76. 
ee also ANTHROPOLOGIC Typn; PaysioGNomic TyYpEs. 
Typical criminal, 111, 112. See also MuRDERER. 


U 
Usage, social, 11. 
Utilitarian school, its notion of crime, 55. 
Utility, Spencer’s theory of, as origin of moral sense, 7, 155, 240. 
social, as an element of punishment, 56. 
experiences of, must have been undergone as well in lower as in 
upper strata of society, 156. 
must have included pain-bringing reaction against crime, 241. 
social desire to eliminate offender, not dependent on direct consid- 
erations of, 235. 
United States, penal improvements in, xxx, note 1. 


lynching, 49. 
prohibition of sale of intoxicants, 187, note 1. 


SUBJECT INDEX 477 


¥: 


Vagabonds, and moral neurasthenia, 128. 
punishment of, 225, 390, 412. 
in Tudor England, 247, 325, note 2. 
should not be granted provisional liberation, 347. 
Vagabondage, 165, 198. 
Valjean, Jean, 145. 
Vanity of criminals, 83, 103. 
Vascular reaction, 92. 
Vendetta, 49, 112. 
Vengeance, the original basis of punishment, 230. 
punishment apparent expression of social, 232. 
Vesanic heredity, 259, note 2. 
Vesanic manifestations, 106. 
Vicaria, a prison of Palermo, 206. 
Vigilance, defects in, as causes of crime (Romagnosi), 180. 
“Violation de domicile” explained, 42, note 1. 
mentioned, 42. 
Violent criminal, a physiognomic type, 72. 
Violent criminals (in author’s classification), 112-130, 131, 134. 
punishment of, 382, 391. 
(a) homicidal offenders, 382-385. 
(b) —— guilty of serious physical or moral cruelty, 386, 


(c) youthful offenders, 387, 388. 
(d) ees deficient only in moral training or restraint, 389- 


391. 
Virtue, feminine, 16, 17, 36, 37. 
“Vitium,” 99. 
Vitriol-throwing, 114, 196. 
“‘Vitrioleuses,” 196. 
“Voies de fait,’”’ 440. 
“Vol domestique,” 245 and note 1. 
“Vol qualifié,” 151 and note 1, 198, 245 and note 1, 300. 
“Vol simple,” 151 and note 1, 202, 227. 
Vulnerability, defective or lacking, 115. 


WwW 


Wages, increase of, in France, 159, 168. 

War, may cause a political crime to become a natural crime, 39. 
and capital punishment compared, 51. 
effect upon crime in general. See Economic DIsTURBANCES. 

Warrant of arrest in French criminal procedure, 341, note 1. 

Wealth, unequal distribution of, in relation to crime, 142-165. 

Wheat, increase of its consumption in France, 159, 168. 

Wheat crop, increase of, in France, 1825-1878, 168. 

Will. See Fren Wri. 

Wine, its consumption in France, 162, note 1. 

See also Auconouic Liquors. 

Witchcraft, 5, 16, 113. 

Wives, transfer of, 12. 

Women criminals, differential treatment proper for, 408. 

Words, offensive. See INSULTS. 

Work, in penitentiaries, data as to, in France and Italy, 394, note 1, 
State-provided, Romagnosi’s plan for, 180, 181. 


478 SUBJECT INDEX 


Work (continued), compulsory, in penal treatment of certain offenders. 
See Compuntsory Lasor. 
Workmen, described by Zola, their characteristics, 155. 
theft by. See ‘“Vo~t DomestiqueE.” 
Woundings, 163, 202. See also SrrrkINGS AND WOUNDINGS. 
Wrecks, pillage of, 5, 26. 


¥ 
Youthful offenders, punishment of, in general, 225, 408. 
where belonging to class of Violent criminals, 385, 387, 388. 
ie belonging to class of Criminals deficient in probity, 395, 


only intelligent study of reformative measures in case of, 256. 


Z 
Zoéphily, 27. 
Zygomata of criminals, 67,70. See also EuRYGNATHISM. 














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